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Jimlan S. Ismael Atty. Jose A.

Remedial Law Review 1 SAT 8:00am-12:00pm

Assignment 2

1. Create an outline of the rules on summary procedure (criminal case)

1. Upon the filing of a civil or criminal action, the court shall issue an order
a. Contents:
i. declaring whether or not the case shall be governed by this Rule.
b. Note: A patently erroneous determination to avoid the application of the Rule on Summary
Procedure is a ground for disciplinary action. (Sec. 2)

8. Sec. 8. Record of preliminary conference

2. Filing of complaint (order stating the matters taken up therein). —
a. Period:
3. After the court determines that the case falls i. Within five (5) days after
under summary procedure, the termination of the
a. it may dismiss the case outright on preliminary conference, the
any of the grounds apparent court shall issue an order
therefrom for the dismissal of a stating the matters taken up
civil action. therein,
b. Basis: b. Matters that may be taken up in
i. from an examination of the prelim conference including but not
allegations therein and limited to:
ii. such evidence as may be i. Whether the parties have
attached thereto arrived at an amicable
settlement, and if so, the
4. If no ground for dismissal is found it shall terms thereof;
forthwith issue summons which shall state ii. The stipulations or
that the summary procedure under this Rule admissions entered into by
shall apply. (sec. 4) the parties;.
iii. Whether, on the basis of the
5. Within ten (10) days from service of pleadings and the
summons, the defendant shall file his answer stipulations and admissions
to the complaint and serve a copy thereof on made by the parties,
the plaintiff. (Sec. 5) judgment may be rendered
a. Affirmative and negative defenses without the need of further
not pleaded therein shall be deemed proceedings, in which event
waived, the judgment shall be
i. Exception: rendered within thirty (30)
1. except for lack of days from issuance of the
jurisdiction over order;
the subject iv. A clear specification of
matter. material facts which remain
b. Cross-claims and compulsory controverted; and
counterclaims not asserted in the v. Such other matters intended
answer shall be considered barred. to expedite the disposition
c. Sec. 6. Effect of failure to answer. of the case.
— Should the defendant fail to
answer the complaint within the 9. Within ten (10) days from receipt of the order
period above provided, the court, mentioned in the next preceding section, the
motu proprio, or on motion of the parties shall submit
plaintiff, a. the affidavits of their witnesses and
i. shall render judgment as b. other evidence on the factual issues
may be warranted by the defined in the order,
facts alleged in the c. together with their position papers
complaint and limited to setting forth the law and the facts
what is prayed for therein: relied upon by them.
1. Provided, 10. Within thirty (30) days after receipt of the last
however, that the affidavits and position papers, or the
court may in its expiration of the period for filing the same, the
discretion reduce court:
the amount of a. the court shall render judgment.
damages and b. However should the court find it
attorney's fees necessary to clarify certain material
claimed for being facts, it may, during the said period,
excessive or issue an order specifying the matters
otherwise to be clarified, and require the parties
unconscionable. to submit affidavits or other evidence
This is without on the said matters
prejudice to the i. within ten (10) days from
applicability of receipt of said order.
Section 4, Rule ii. Judgment shall be rendered
15 of the Rules of within fifteen (15) days after
Court, if there are the receipt of the last
two or more clarificatory affidavits, or
defendants. the expiration of the period
for filing the same.
6. The answer to counterclaims or cross-claims
shall be filed and served within ten (10) days
from service of the answer in which they are
pleaded. (sec. 5) 2. Preliminary conference. — Before conducting
the trial, the court shall call the parties to a
7. a preliminary conference shall be held. preliminary conference
a. When? a. during which
i. Not later than thirty (30) i. a stipulation of facts may be
days after the last answer entered into, or
is filed, ii. the propriety of allowing the
b. The rules on pre-trial in ordinary accused to enter a plea of
cases shall be applicable to the guilty to a lesser offense
preliminary conference may be considered, or
i. Exception: unless iii. such other matters may be
inconsistent with the taken up to clarify the issues
provisions of this Rule. and to ensure a speedy
c. Effects of Failure to Appear (sec. 8) disposition of the case.
i. The failure of the plaintiff b. Rule: However, no admission by the
to appear in the accused shall be used against him
preliminary conference unless
1. shall be a cause i. reduced to writing and
for the dismissal ii. signed by
of his complaint. 1. the accused and
2. The defendant 2. his counsel.
who appears in c. A refusal or failure to stipulate shall
the absence of the not prejudice the accused.
plaintiff shall be 3. At the trial,
entitled to a. the affidavits submitted by the parties
judgment on his shall constitute the direct testimonies
counterclaim in of the witnesses who executed the
accordance with same.
Section 6 hereof. b. Witnesses who testified may be
3. All cross-claims subjected to cross-examination,
shall be redirect or re-cross examination.
dismissed. c. Should the affiant fail to testify, his
ii. If a sole defendant shall affidavit shall not be considered as
fail to appear, competent evidence for the party
1. the plaintiff shall presenting the affidavit, but the
be entitled to adverse party may utilize the same
judgment in for any admissible purpose.
accordance with d. no witness shall be allowed to testify
Section 6 hereof. unless his affidavit was previously
This Rule shall submitted to the court in accordance
not apply where with Section 12 hereof.
one of two or i. Exception: Except in
more defendants 1. rebuttal or
sued under a 2. surrebuttal,
common cause of e. However, should a party desire to
action who had present additional affidavits or
pleaded a counter-affidavits as part of his direct
common defense evidence, he shall so manifest during
shall appear at the the preliminary conference, stating
preliminary the purpose thereof.
conference. i. If allowed by the court, the
additional affidavits of the
prosecution or the counter-
affidavits of the defense
shall be submitted to the
court and
ii. served on the adverse party
not later than three (3) days
after the termination of the
preliminary conference.
iii. If the additional affidavits
are presented by the
prosecution, the accused
may file his counter-
affidavits and serve the
same on the prosecution
within three (3) days from
such service.
4. Where a trial has been conducted, the court
shall promulgate the judgment not later than
thirty (30) days after the termination of trial.

2. Create an outline of the rules of procedure in appealing crim cases to DOJ



Sec. 1 Any party may appeal from a judgment or final
order, unless the accused will be placed in double


NOTICE OF APPEAL FILED WITH COURT …shall be taken by filing a notice of appeal with the
WHICH RENDERED JUDGMENT WITHIN 15 court which rendered the judgment or final order
DAYS FROM PROMULGATION appealed from and by serving a copy thereof upon the
adverse party.


An appeal must be taken within 15 days from
promulgation of the judgment or from notice of the
OF THE CASE TO THE CLERK OF COURT final order appealed from. This period for perfecting
OF THE APPELLATE COURT WITHIN 5 an appeal shall be suspended from the time a motion
DAYS FROM FILING OF NOTICE for new trial or reconsideration is filed until notice of
the order overruling the motion shall have been served
upon the accused or his counsel at which time the
balance of the period begins to run.
Sec. 7 When notice of appeal is filed by the accused,
the trial court shall direct the stenographic reporter to
transcribe his notes of the proceedings. When filed by
CLERK OF COURT TRANSMITS RECORD the People of the Philippines, the trial court shall
OF THE CASE TO THE CLERK OF COURT direct the stenographic reporter to transcribe such
OF THE APPELLATE COURT WITHIN 5 portion of his notes of the proceedings as the court,
DAYS FROM FILING OF NOTICE upon motion, shall specify in writing. The
stenographic reporter shall certify to the correctness of
the notes and the transcript thereof, which shall consist
of the original and four copies, and shall file the
original and four copies with the clerk without
unnecessary delay...

Sec. 8 Within 5 days from the filing of the notice of

appeal, the clerk of the court with whom the notice of
appeal was filed must transmit to the clerk of court of
the appellate court the complete record of the case,
together with said notice. The original and three copies
of the transcript of stenographic notes, together with
the records, shall also be transmitted to the clerk of the
appellate court without undue delay. The other copy of
the transcript shall remain in the lower court.

3. Ilustrate the application of RA 7438 in 3 cases 2013-2018

3.1 PEOPLE VS SERVO (2013)

Appellant Mario Serzo was convicted of murder by the lower court for the stabbing/killing of Alfredo
Casabal after the latter rescued minors being held by the former.

Pre-trial was waived and the case proceeded to trial on the merits.

The accused alleged that he was denied the right to counsel. During the arraignment he appeared without
counsel,so the court appointed a counsel de officio. Thereafter, he moved that the arraignment be reset so
he can engage the services of his own counsel however, during the arraignment, he still appeared without
one. The arraignment proceeded with him being assisted by the counsel de officio.

During the trial, the same counsel appeared and cross-examined for the accused.

Whether or not the accused was denied of his right to counsel

NO. Herein, the accused was provided with a counsel de officio who assisted him in all stages of the
proceedings.The option to hire ones counsel cannot be used to sanction reprehensible dilatory tactics, trifle
with the Rules or prejudice the equally important right of the State and the offended party to speedy and
adequate justice.

The right to counsel is guaranteed by the Constitution to minimize the imbalance in the adversarial system
where an accused is pitted against the awesome prosecution machinery of the state. It is also a recognition
of the accused not having the skill to protect himself before a tribunal which has the power to take his life
or liberty.
The right covers the period from custodial investigation until judgment is rendered, even on appeal. RA
7438 provides that any person arrested or detained or under custodial investigation shall at all times be
assisted by counsel.
The right is however not absolute and is waivable; a) the state must balance the private against the state's
and offended party's equally important right to speedy and adequate justice, and b) the right is waivable as
long as the waiver is unequivocal, knowing, and intelligently made.


On January 6, 1996, Paula and Albert Bandibas were killed and robbed. As a part of the investigation and
as a result of a witness’ testimony, Edwin and Leandro Morial were asked several questions by the
policemen and were invited to the police station for continuing investigation. They were turned over to
SPO4 Andres Fernandez and later interrogated again after they woke up at past 6 in the morning. That
investigation conducted by SPO4 Fernandez resulted into the admission by Leandro that he was one of
those who participated in the robbery with homicide. With the latter’s consent, his statements were reduced
into writing. SPO4 Fernandez then advised him of his right to remain silent and to have a counsel,
whatever will be his answer will be used as evidence in court. SPO4 Fernandez volunteered to obtain a
lawyer for the suspect, to which Leandro consented. Atty. Aguilar was contacted by the former and he first
met the latter at January 9, 1996 at about 8:00 in the morning. After Leandro agreed to answer voluntarily
knowing that the same can be used against him as evidence in court, the investigation was conducted by
SPO4 Fernandez with the presence of the counsel. After “all the material points” were asked, Atty. Aguilar
asked the investigator if he can leave due to very important engagement. The latter agreed to the lawyer’s
request. But before leaving, Atty. Aguilar asked Leonardo if he was willing to answer questions in
his absence, the latter agreed. During and despite Atty. Aguilar’s absence, SPO4 Fernandez continued with
the investigation and propounded several more questions to Leonardo, which the latter answered.

Whether or not Leonardo Morial’s right to counsel was waived during the investigation.

Leonardo was effectively deprived of his right to counsel during the custodial investigation; therefore his
quasi-judicial confession is inadmissible in evidence against him and his other co-accused. The Court
stressed out that an accused under custodial interrogation must continuously have a counsel assisting him
from the very start thereof. SPO4 Fernandez cannot justify that Atty. Aguilar only left after Leonardo had
admitted that he and his companions committed the crime. Neither can Atty. Aguilar rationalize that he
only left after Leonardo had admitted the “material points”, referring to the participation of the three
accused to the crime. Both are invalid since Section 2 of R.A. No. 7438 requires that “any person arrested,
detained or under custodial investigation shall at all times be assisted by counsel.” Furthermore, the last
paragraph of Section 3 states that “in the absence of any lawyer, no custodial investigation shall be
Even granted that Leonardo consented Atty. Aguilar’s departure during the investigation and to answer
questions during the lawyer’s absence, such consent was an invalid waiver of his right to counsel and his
right to remain silent. Under Section 12, Article III of the Constitution, these rights cannot be waived
unless the same is made in writing and in the presence of the counsel. In the case at bar, no such written
and counseled waiver of these rights was presented as evidence.



4. Illustrate the death of the accused through 4 recent cases:

4.1. If the death occurs prior arraignment
4.2. Death after arraignment but before judgment
4.3. Death after conviction
4.4. Death during course of appeal
5. Digest the ff. cases:

5.1. Crespo doctrine



On April 18, 1977 the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo.
When the case was set for arraignment the accused filed a motion to defer arraignment on the
ground that there was a pending petition for review filed with the Secretary of Justice. In an order,
the presiding judge, Leodegario L. Mogul, denied the motion.

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed
by the accused in the CA which was eventually granted while perpetually restraining the judge
from enforcing his threat to compel the arraignment of the accused in the case until the
Department of Justice shall have finally resolved the petition for review.

The Undersecretary of Justice reversed the resolution of the Office of the Provincial Fiscal and
directed the fiscal to move for immediate dismissal of the information filed against the accused.
But the respondent judge denied the motion.

ISSUE: Whether the trial court acting on a motion to dismiss a criminal case filed by the
Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for
review, may refuse to grant the motion and insist on the arraignment and trial on the merits.


It is a cardinal principle that an criminal actions either commenced by complaint or by information

shall be prosecuted under the direction and control of the fiscal. And it is through the conduct of a
preliminary investigation that the fiscal determines the existence of a prima facie case that would
warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and
control of the criminal prosecution.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require
that the trial on the merits proceed for the proper determination of the case.

The role of the fiscal or prosecutor as we all know is to see that justice is done and not necessarily
to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to
the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such circumstances much
less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor
for then the entire proceedings will be null and void. The least that the fiscal should do is to
continue to appear for the prosecution although he may turn over the presentation of the evidence
to the private prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole judge on what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss
the case filed by the fiscal should be addressed to the Court who has the option to grant or
deny the same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
5.2. Tatad doctrine



In 1974, Antonio de los Reyes (Head Executive Assistant of Department of Public Information)
filed a formal report with the Legal Panel, Presidential Security Command against Tatad (who was
then Secretary of the Dept. of Public Information). Allegations therein relate to alleged violations
of RA 3019 (anti-graft). No action was taken on said report. 5 years later (1979), Tatad resigned
from his post as department head. 2 months later, de los Reyes filed a complaint with the
Tanodbayan against Tatad alleging the same things. In 1980, the resignation of Tatad was
accepted by Pres. Marcos. In the same year, the Tanodbayan referred the complaint to the
Criminal Investigation Service (CIS) for fact finding investigation. Thereafter, an investigation
report was made stating that based on evidence gathered, Tatad violated RA 3019.

Tatad filed a motion to dismiss the complaint on the ground that he has immunity from
prosecution (PD 1791). This was denied. So pleadings were instead submitted. By 1982, all
affidavits and counter-affidavits were already with the Tanodbayan for final disposition. Note that
it was only in 1985 when the Tanodbayan made a resolution recommending that informations be
filed with the Sandiganbayan against Tatad. 2 months after, Five informations were filed with the
Sandiganbayan (3 informations for failure to file SALN, the other two relate to bribery and giving
undue advantage to a private corporation).

Tatad filed a motion to quash with the Sandiganbayan alleging, among other things, that the
prosecution deprived him of due process of law and of the right to a speedy disposition of the
cases filed against him, amounting to loss of jurisdiction to file the information and that the
offenses charged had already prescribed. On the other hand, Tanodbayan submitted that based on
jurisprudence, the filing of the complaint with them interrupted that prescription period so the
offenses are not really prescribed yet. Moreover, Tanodbayan pointed out that a law such as BP
195, extending the period of limitation with respect to criminal prosecution, unless the right to
acquittal has been acquired, is constitutional.

Sandiganbayan denied the motion to quash. It held that based on the Rule 117 of the 1985 Rules
on Criminal Procedure, the defect in the information can be cured by amendment. So several
months after this resolution, an amended information was filed by the Tanodbayan changing the
dates of the commission of the offenses.

MR filed by Tatad – also denied. Hence, this certiorari and prohibition (Rule 65) was filed with
the SC. Tatad claims that the Tanodbayan culpably violated the constitutional mandate of due
process and speedy disposition of cases in unduly prolonging the termination of the preliminary
investigation and in filing the corresponding information only after more than a decade from the
alleged commission of the purported offenses, which amounted to loss of jurisdiction and
authority to file the informations.

The Sandiganbayan dismissed this by saying that the applicability of the authorities cited by Tatad
to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical
relief" prayed for at this stage of the proceeding; that the mere allegations of "undue delay" do not
suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of
any alleged procedural right granted or allowed to the respondent accused by law or administrative
fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the
Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as
would establish petitioner's claim of denial of due process and other constitutionally guaranteed
rights could be presented and more fully threshed out at the trial.

Was Tatad deprived of his constitutional right to due process and the right to "speedy disposition"
of the cases against him as guaranteed by the Constitution? (YES)
In a number of cases, the SC has not hesitated to grant the so-called "radical relief" and to spare
the accused from undergoing the rigors and expense of a full-blown trial where it is clear that the
accused has been deprived of due process of law or other constitutionally guaranteed rights. Of
course, it goes without saying that in the application of the doctrine enunciated in those cases,
particular regard must be taken of the facts and circumstances peculiar to each case. A review of
the facts at hand cannot but leave the impression that political motivations played a vital role in
activating and propelling the prosecutorial process in this case. First, the complaint came to life
only after Tatad had a falling out with President Marcos. Second, departing from established
procedures prescribed by law for preliminary investigation, which require the submission of
affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the
Tanodbayan referred the complaint to the Presidential Security Command for finding investigation
and report.

SC held that there was a blatant departure from the established procedure as a dubious, but
revealing attempt to involve an office directly under the President in the prosecution was
politically motivated. Prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other
purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of
justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor,
weak or strong, powerless or mighty. Only by strict adherence to the established procedure may
the public's perception of the impartiality of the prosecutor be enhanced.

Moreover, the long delay in resolving the case under preliminary investigation cannot be justified
on the basis of the facts on record. PD 911 prescribes a10 day period for the prosecutor to resolve
a case under preliminary investigation by him from its termination. While this period fixed by law
is merely "directory," yet, on the other hand, it cannot be disregarded or ignored completely, with
absolute impunity. It certainly cannot be assumed that the law has included a provision that is
deliberately intended to become meaningless and to be treated as a dead letter.

The long delay in the termination of the preliminary investigation by the Tanodbayan in the
instant case is violative of the constitutional right of the accused to due process. Substantial
adherence to the requirements of the law governing the conduct of preliminary investigation,
including substantial compliance with the time limitation prescribed by the law for the resolution
of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by
the fundamental law. Not only under the broad umbrella of the due process clause, but under the
constitutionally guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill
of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years cannot be deemed reasonable
or justifiable in the light of the circumstance obtaining in the case at bar. It has been suggested that
the long delay in terminating the preliminary investigation should not be deemed fatal, for even
the complete absence of a preliminary investigation does not warrant dismissal of the information.
True — but the absence of a preliminary investigation can be corrected by giving the accused such
investigation. But an undue delay in the conduct of a preliminary investigation cannot be
corrected, for until now, man has not yet invented a device for setting back time.

5.3. Brokay doctrine