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G.R. 173637 Dante Tan v.

People of the Philippines, April 21, 2009

Criminal Law: Criminal Procedure: Evidence; The burden of proof is on the prosecution and unless it
discharges that burden, the accused need not offer evidence in his behalf and he would be entitled to an


This is a petition for review on certiorari seeking the reversal of the Court of Appeals Decision dated
February 2006 in CA-G.R. SP 83068.

The assailed Decision reinstated the Criminal Case 119830, earlier dismissed by the trial court due to an
alleged violation of petitioner Dante Tan's right to speedy trial. The assailed Resolution denied his
Motion for Reconsideration and Motion to Inhibit.

The pertinent facts are as follows:

1. On December 2000, a panel of prosecutors of the Department of Justice on behalf of the People filed
three Informations against Dante Tan before the RTC Pasig. The cases were docketed Criminal Cases No.
119830, 119831 and 119832.

2. Criminal Case No. 119830 pertains to allegations that petitioner employed manipulative devises in the
purchase of Best World Resources Corporation (BW) shares. On the other hand, Criminal Cases No.
119831 and 119832 involved the alleged failure of petitioner to file with the Securities and Exchange
Commission (SEC) a sworn statement of his beneficial ownership of BW shares.

3. During the course of the proceedings, the People insists that during the pendency of the initial
hearing on February 27, 2001, the parties agreed that Criminal Cases No. 119831 & 119832 will be tried
ahead of Criminal Case No. 119830; and that petitioner would not interpose any objection to its
manifestation, nor would the trial court disapprove it.

4. On December 2003, petitioner moved to dismiss Criminal Case 119830 due to the People's alleged
failure to prosecute the case for an unreasonable length of time and without giving any excuse or
justification for the delay in violation of his right to speedy trial. According to the petitioner, he was
persistent in asserting his right to speedy trial, which he had allegedly done on several instances. Finally,
he claimed to have been substantially prejudiced by the delay.
5. The prosecutors opposed the motion, claiming that the parties had an earlier agreement to defer the
trial of Criminal Case 119830.

RTC Ruling

6. The RTC Pasig Branch 153 ordered the dismissal of Criminal Case 119830, arguing that the delays
which attended the proceedings of petitioner's case were vexatious, capricious, oppressive, resulting in
violation of petitioner's right to speedy trial, thus, the RTC ordered its dismissal.

Court of Appeals Ruling

7. Setting aside the trial court's order of dismissal, the CA granted the petition for certiorari. In resolving
the petition, the appellate court reinstated Criminal Case 119830, and the trial court is ordered to
conduct further proceedings in the said case immediately.


Was there a violation of Dante Tan's right to speedy trial?

Court Ruling:

The right to a speedy trial means one free from vexatious, oppressive delays, its salutary objective being
to assure that an innocent person may be freed from the anxiety and expense of a court litigation, or if
otherwise, of having his guilt determined within the shortest possible time compatible with the
presentation and consideration of whatever legitimate defense he may interpose.

An accused's right to have a speedy, impartial and public trial is guaranteed in Criminal Cases by Section
14(2) of Article III of the Constitution. Intimating historical perspective on the evolution of the right to
speedy trial, we reiterate the old legal maxim "justice delayed in justice denied."

In Corpuz v. Sandiganbayyan, the Court had the occasion to state:

"The right of the accused to a speedy trial and to a speedy disposition of the case against him was
designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him
for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy
disposition of a case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused has been denied such right is not
susceptible by precise qualification. The concept of a speedy disposition is a relative term and must
necessarily be a flexible conceot.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere
speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift,
but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the
accused, but does not preclude the rights of the public service. Also, it must be borne in mind that the
rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence,
courts are to give meaning to that intent.

An accused's right to speedy trial is deemed violated only when the proceeding is attended by vexatious,
capricious and oppressive delays.

In determining whether petitioner was deprived of his right, the factors to consider and balance are the

(a) duration of the delay

(b) reason therefor
(c) assertion of the right or failure to assert it
(d) prejudice caused by such delay.

The question that needs to be answered therefore was whether there was vexatious, capricious and
oppressive delay. To this, we apply the four-factor test previously mentioned.

In this case, Dante Tan's failure to object the prosecution's manifestation that the cases be tried
separately is fatal to his case. The length of delay, the complexity of issues and his failure to invoke the
said right to speedy trial at the appropriate time tolled the death knell on his claim to the constitutional
guarantee. More importantly, in failing to interpose a timely objection to the prosecution's
manifestation during the preliminary hearings that the cases be tried separately, petitioner was deemed
to have acquiesced and waived his objection thereto.
For this reason, there is clearly insufficient ground to conclude that the prosecution is guilty of violating
petitioner's right to speedy trial. Grave abuse of discretion defies exact definition, but generally refers to
"capricious and whimsical exercise of judgment as in equivalent to lack of jurisdiction".

The constitutional protection against double jeopardy shields one from a second or later prosecution for
the same offense.

There is no merit to petitioner's claim that a reversal of the RTC's Order dismissing Criminal Case 119830
is a violation of his constitutional right against double jeopardy which dismissal was founded on an
alleged violation of his right to speedy trial.

For double jeopardy to attach then, the following elements in the first criminal case must be present:

(a) The complaint or information or other formal charge was sufficient in form and substance to sustain
a conviction; (b) the court had jurisdiction (c) the accused had been arraigned and had pleaded, and (d)
he was convicted or acquitted or the case was dismissed or otherwise terminated without the express
consent of the accused.

Among the above-cited elements, the Court is concerned with the fourth element--the conviction or
acquittal, or the case was dismissed or otherwise terminated without the express consent of the
accused. The element is crucial since, as a general rule, the dismissal of a criminal case resulting in
acquittal, made with express consent of the accused or upon his own motion, will not place the accused
in double jeopardy.

In this case, double jeopardy has not attached, considering that the dismissal of Criminal Case No.
119830 on the ground of violation of his right to speedy trial was without basis and issued with grave
abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy
trial has not been violated, there is no reason to support the initial order of dismissal.

In Almario v. Court of Appeals, the petitioner's right to speedy trial was no transgressed, this exception
to the fourth element of double jeopardy--that the defendant was acquitted or convicted, or the case
was dismissed or otherwise terminated without the express consent of the accused--was not met.

Where the dismissal of the case was "allegedly" capricious, certiorari lies from such order of dismissal
and does not involve double jeopardy, as the petition challenges not the correctness but the validity of
the order of dismissal; such grave abuse of discretion amounts to lack of jurisdiction, which prevents
double jeopardy from attaching.
Cudia vs. CA Case Digest

If the fiscal had no authority to file the information, the dismissal of the first information would not be a
bar to subsequent prosecution. Jeopardy does not attach where a defendant pleads guilty to a defective
indictment that is voluntarily dismissed by the prosecution.

Cudia v CA

Cudia was arrested in Mabalacat, Pampanga allegedly for possessing an unlicensed revolver. He was
brought to Angeles City, where he was detained. The City Prosecutor of Angeles City filed an information
against him for illegal possession of firearms and ammunition. The Information states that he committed
the crime in Angeles City. The case was raffled to RTC Branch 60, Angeles City. Cudia pleaded not guilty
to the charges. During the ensuing pre-trial, the court called the attention of the parties to the fact that,
contrary to the information, petitioner had committed the offense in Mabalacat, and not in Angeles City.
Inasmuch as there was an existing arrangement among the judges of the Angeles City RTCs as to who
would handle cases involving crimes committed outside of Angeles City, the judge ordered the re-
raffling of the case to a branch assigned to criminal cases involving crimes committed outside of the city.
Thereafter, the case was assigned to Branch 56 of the Angeles City RTC.

However, the provincial prosecutor of Pampanga also filed an information charging petitioner with the
same crime of illegal possession of firearms and ammunition. The case was likewise raffled to Branch 56
of the Angeles City RTC. This prompted the prosecutor in the first criminal case to file a Motion to
Dismiss/Withdraw the Information, it appearing that the apprehension of the accused was made in
Mabalacat, Pampanga, within the jurisdiction of the Provincial Prosecutor of Pampanga. The trial court
granted the motion.

Cudia then filed a Motion to Quash the second criminal case on the ground that his continued
prosecution for the offense of illegal possession of firearms and ammunition for which he had been
arraigned in the first criminal case, and which had been dismissed despite his opposition would violate
his right not to be put twice in jeopardy of punishment for the same offense. The trial court denied the
motion to quash. CA affirmed that there was no double jeopardy on the ground that the petitioner could
not have been convicted under the first information as the same was defective.


Whether or not Sapiera could be held civilly liable when she was acquitted in the criminal charges
against her

It is plainly apparent that the City Prosecutor of Angeles City had no authority to file the first
information, the offense having been committed in the Municipality of Mabalacat, which is beyond his

It is thus the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should prepare
informations for offenses committed within Pampanga but outside of Angeles City. An information,
when required to be filed by a public prosecuting officer, cannot be filed by another. It must be
exhibited or presented by the prosecuting attorney or someone authorized by law. If not, the court does
not acquire jurisdiction.

Petitioner, however, insists that his failure to assert the lack of authority of the City Prosecutor in filing
the information in question is deemed a waiver thereof. As correctly pointed out by the Court of
Appeals, petitioners plea to an information before he filed a motion to quash may be a waiver of all
objections to it insofar as formal objections to the pleadings are concerned. But by clear implication, if
not by express provision of the Rules of Court, and by a long line of uniform decisions, questions relating
to want of jurisdiction may be raised at any stage of the proceeding. It is a valid information signed by a
competent officer which, among other requisites, confers jurisdiction on the court over the person of
the accused (herein petitioner) and the subject matter of the accusation. In consonance with this view,
an infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by
silence, acquiescence, or even by express consent.

In fine, there must have been a valid and sufficient complaint or information in the former prosecution.
If, therefore, the complaint or information was insufficient because it was so defective in form or
substance that the conviction upon it could not have been sustained, its dismissal without the consent
of the accused cannot be pleaded. As the fiscal had no authority to file the information, the dismissal of
the first information would not be a bar to petitioners subsequent prosecution. Jeopardy does not
attach where a defendant pleads guilty to a defective indictment that is voluntarily dismissed by the
prosecution. (Cudia vs. CA, G.R. No. 110315. January 16, 1998)

Malto v people
Sometime during the month of November 1997 to 1998, Malto seduced his student, AAA, a minor, to
indulge in sexual intercourse several times with him. Prior to the incident, petitioner and AAA had a
“mutual understanding” and became sweethearts. Pressured and afraid of the petitioner’s threat to end
their relationship, AAA succumbed and both had sexual intercourse.
Upon discovery of what AAA underwent, AAA’s mother lodged a complaint in the Office of the City
Prosecutor of Pasay City. Assistant City Prosecutor charged the petitioner in an Information a violation
of Section 5(a), Article III, RA 7610. During the month of November 1997 up to 1998, in Pasay City,
Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously take
advantage and exert influence, relationship and moral ascendancy and induce and/or seduce his student
at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said accused has carnal knowledge.
The trial court found the evidence for the prosecution sufficient to sustain petitioner’s conviction and
rendered a decision finding petitioner guilty beyond reasonable doubt for violation of Article III, Section
5(a), par. 3 of RA 7610, as amended and sentenced him to reclusion temporal.
In a decision, the appellate court affirmed his conviction even if it found that his acts were not covered
by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610; and thereby sentenced to an
indeterminate penalty prision mayor.
Whether or not the CA erred in sustaining petitioner’s conviction on the grounds that there was no rape
committed since their sexual intercourse was consensual by reason of their “sweetheart” relationship
NEGATIVE. Petitioner is wrong.
Petitioner violated Section 5(b), Article III of RA 7610, as amended. The first element of Section 5(b),
Article III of RA 7610 pertains to the act or acts committed by the accused. The second element refers to
the state or condition of the offended party. The third element corresponds to the minority or age of
the offended party. Since all three elements of the crime were present, the conviction of petitioner was
Consent of the child is immaterial in criminal cases involving violation of Sec. 5, Art. III of RA 7610.
Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse
with him. They engaged in these acts out of mutual love and affection. The sweetheart theory applies in
acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It
operates on the theory that the sexual act was consensual. It requires proof that the accused and the
victim were lovers and that she consented to the sexual relations.30
For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the
sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse
cannot validly give consent to sexual intercourse with another person.
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily
be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of
her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those
who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years
deserve its protection.
The harm which results from a child’s bad decision in a sexual encounter may be infinitely more
damaging to her than a bad business deal. Thus, the law should protect her from the harmful
consequences of her attempts at adult sexual behavior. For this reason, a child should not be deemed to
have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special protection against abuse, exploitation and
discrimination. In other words, a child is presumed by law to be incapable of giving rational consent to
any lascivious act or sexual intercourse.
To provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and
discrimination, and other conditions prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and deterrence of and crisis intervention in
situations of child abuse, exploitation, and discrimination. [A]s well as to intervene on behalf of the child
when the parents, guardian, teacher or person having care or custody of the child fails or is unable to
protect the child against abuse, exploitation, and discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or person having care and custody of the same.
The best interest of children shall be the paramount consideration in all actions concerning them,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities, and legislative bodies, consistent with the principles of First Call for Children as enunciated
in the United Nations Convention on the Rights of the Child. Every effort shall be exerted to promote the
welfare of children and enhance their opportunities for a useful and happy life.
Licyayo vs. People- Sufficient Provocation and Intoxication
G.R. No. 169425, March 4, 2008


Licyayo was charged of Homicide with the RTC when he stabbed Rufino in different parts of the body.
The RTC convicted Licyayo guilty of the crime Homicide there being no attending aggravating or
mitigating circumstances.

The petitioner appealed contending that sufficient provocation and intoxication should be taken as
mitigating circumstances attendant in the case. He insisted that there is sufficient provocation because
it was the deceased who punched him first and when the incident ensued he was intoxicated.


Whether or not sufficient provocation and intoxication should be considered as mitigating

circumstances attendant in the case.


The records do not sufficiently establish who between Rufino and Aron started the brawl which resulted
in the stabbing of Rufino by petitioner. Granting arguendo that there was unlawful aggression on the
part of the victim, it is obvious that immediately he became the underdog, literally even. He was easily
overpowered by the bigger and sober Aron Licyayo. Sufficient provocation therefore cannot be
appreciated in favor of the petitioner.

As testified by the police officers, they said that petitioner indeed was drunk when the scuffle ensued.
However, these testimonies alone do not suffice as proof to appreciate intoxication as a mitigating
circumstance. In the case at bar, there is no plausible evidence showing that the quantity of liquor taken
by petitioner was of such quantity as to affect his mental faculties. On the contrary, the fact that
petitioner could recall the details that transpired during and after his drinking session with friends is the
best proof that he knew what he was doing during the incident.
PEOPLE vs. UBIÑA Case Digest
G.R. No. 176349 July 10, 2007

FACTS: Appellant, Orlando Ubina, was charged with rape of his 15-year old niece. The appellant pleaded
not guilty to the charge. After trial, the RTC found him guilty of rape. The appellate court affirmed the
ruling of the RTC. However, the appellate court disregarded the aggravating circumstance of craft and
the special qualifying circumstances of minority and relationship of the parties in the imposition of
penalty because it noted that they were not alleged in the information. Hence, this appeal.

ISSUE: Did the court err in disregarding the qualifying circumstance of relationship and minority?

HELD: The twin circumstances of minority and relationship under Article 335 of the Revised Penal Code,
as amended by R.A. No. 7659, are in the nature of qualifying circumstances because they alter the
nature of the crime of rape and increase the penalty. As special qualifying circumstances they must be
specifically pleaded or alleged with certainty in the information; . . . If the offender is merely a relation
— not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim —
the specific relationship must be alleged in the information, i.e., that he is "a relative by consanguinity or
affinity [as the case may be] within the third civil degree. The information in the instant case only
mentioned appellant as AAA's uncle, without specifically stating that he is a relative within the third civil
degree, either by affinity or consanguinity. Even granting that during trial it was proved that the
relationship was within the third civil degree either of consanguinity or affinity, still such proof cannot
be appreciated because appellant would thereby be denied of his right to be informed of the nature and
cause of the accusation against him. Appellant cannot be charged with committing the crime of rape in
its simple form and then be tried and convicted of rape in its qualified form. Thus, the Court of Appeals
correctly disregarded the qualifying circumstance of relationship.

However, the minority of the victim was properly alleged in the Information. When either one of the
twin special qualifying circumstances of relationship and minority is omitted or lacking, that which is
pleaded in the information and proved by the evidence may be considered as an aggravating
circumstance. As such, complainant's minority may be considered as an aggravating circumstance.
However, it may not serve to raise the penalty in the instant case because in simple rape, the imposable
penalty is reclusion perpetua which is single and indivisible.
G.R. No. 108747, April 6, 1995
Motion to Quash
Rule 117 Section 3 (Grounds)
See: Rule 117 Section 9 (Failure to move to quash or to allege any ground therefor)
FACTS: Petitioner, as President and General Manager of ASPAC Trans.
Company, failed to control his outburst and blurted:
You employees in this office are all tanga, son of a bitches, bullshit. Puro kayo
walang utak. Mga anak ng puta. Magkano ba kayo. God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five separate
Informations instituted by five of his employees, each Information charging him with gravely maligning
them on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten years, the MeTC-Makati found petitioner guilty of grave oral
defamation in four of the five cases filed against him. Not satisfied with the Decision of the MeTC, and
insisting on his innocence, petitioner elevated his case to the RTC.
On 5 August 1991 the RTC, affirmed his conviction but appreciated in his favor a mitigating circumstance
analogous to passion or obfuscation.
Accordingly, petitioner was sentenced in each case to a straight penalty of eight months imprisonment
after he failed to interpose an appeal therefrom the decision of the RTC became final. The case was then
set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest.
But·before he could be arrested petitioner filed an application for probation which the MeTC denied.
Forthwith he went to the Court of Appeals on certiorari which dismissed his petition. Initially, the Court
notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of
September 4, 1991.
Violation of the circular is sufficient cause for dismissal of the petition.
Petitioner does not allege anywhere in the petition that he had asked the respondent court to
reconsider its above order; in fact, he had failed to give the court an opportunity to correct itself if it
had, in fact, committed any error on the matter. He is, however, required to move for reconsideration of
the questioned order before filing a petition for certiorari. This failure is fatal to his cause. It is a ground
for dismissal of his petition.
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. The petition for probation was
filed by the petitioner out of time.
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. The
motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this
Court's compassion in dispensing with the minor technicalities which may militate against his petition as
he now argues before us that he has not yet lost his right to avail of probation notwithstanding his
appeal from the MeTC to the RTC since "the reason for his appeal was precisely to enable him to avail
himself of the benefits of the Probation Law because the original
Decision of the MeTC was such that he would not then be entitled to probation." He contends that "he
appealed from the judgment of the trial court precisely for the purpose of reducing the penalties
imposed upon him by the said court to enable him to qualify for probation."
ISSUE: Whether or not the petitioner was correct in filing an appeal with the
RTC to reduce his penalties to make him eligible for probation
At the outset, petitioner, in accordance with Section 3 Rule 117 of the Rules of Court, should have
moved to quash as each of the four Informations filed against him charged four separate crimes of grave
oral defamation, committed on four separate days. His failure to do so however may now be deemed a
waiver under Section 8 of the same Rule and he can be validly convicted, as in the instant case, of as
many crimes charged in the
Petitioner is no longer eligible for probation. Probation is a mere privilege, not a right. Its benefits
cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act
of grace and clemency or immunity conferred by the state which may be granted by the court to a
seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law
for the offense of which he stands convicted. It is a special prerogative granted by law to a person or
group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests solely upon
the discretion of the court which is to be exercised primarily for the benefit of organized society, and
only incidentally for the benefit of the accused. The Probation Law should not therefore be permitted to
divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the
intention of the legislature to this end is clearly expressed, and no person should benefit from the terms
of the law who is not clearly within them.
Neither Section 4 of the Probation Law, as amended, which clearly mandates that "no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the judgment
of conviction." As such, the application of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not bar the accused from applying for probation
if the appeal is solely to reduce the penalty to within the probationable limit may be equitable, we are
not yet prepared to accept this interpretation under existing law and jurisprudence.
Therefore, that an appeal should not bar 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 Section 4 of the
Probation Law, as amended, which opens with a negative clause, "no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction."
Petitioner thus proceeds on an erroneous assumption that under the MeTC
Decision he could not have availed of the benefits of probation. Since he could have, although he did
not, his appeal now precludes him from applying for probation.
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in
any of the four counts under each of the four
Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases,
counts or incidents was dismissed. Otherwise, we will have to account for the twelve other penalties
imposed by the MeTC. What is clear is that the judgment of conviction rendered by the was affirmed
with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken separately as the
totality of all the penalties is not the test, petitioner should have immediately filed an application for
probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he felt
humbled, was ready to unconditionally accept the verdict of the court and admit his liability.
Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation.
For, plainly, the law considers appeal and probation mutually exclusive remedies.
Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to
assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC
not for the sole purpose of reducing his penalties to make him eligible for probation, since he was
already qualified under the MeTC Decision, but rather to insist on his innocence. The appeal record is
wanting of any other purpose. Thus, in his
Memorandum before the RTC, he raised only three statements of error purportedly committed by the
MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because
of his positive identification by the witness for the prosecution; (b) in giving full faith and credence to
the bare statements of the private complainants despite the absence of corroborating testimonies; and,
(c) in not acquitting him in all the cases. Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private complainants could not have
missed identifying him who was their President and General Manager with whom they worked for a
good number of years.
Petitioner further argued that although the alleged defamatory words were uttered in the presence of
other persons, mostly private complainants, coemployees and clients, not one of them was presented as
a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of
the uncorroborative testimony of private complainants.
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence,
and do not simply put in issue the propriety of the penalties imposed. For sure, the accused never
manifested that he was appealing only for the purpose of correcting a wrong penalty, to reduce it to
within the probationable range. Hence, upon interposing an appeal, more so after asserting his
innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal,
petitioner ipso facto relinquished his alternative remedy of availing of the Probation Law the purpose of
which is simply to prevent speculation or opportunism on the part of an accused who although already
eligible does not at once apply for probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the
RTC to the Court of Appeals does not necessarily mean that his appeal to the
RTC was solely to reduce his penalties. Conversely, he was afraid that the
Court of Appeals would increase his penalties, which could be worse for him.
Besides, the RTC Decision had already become final and executory because of the negligence, according
to him, of his former counsel who failed to seek possible remedies within the period allowed by law.
The application for probation was filed way beyond the period allowed by law.
This is vital way beyond the period allowed by law and crucial. From the records it is clear that the
application for probation was filed only after a warrant for the arrest of petitioner had been issued and
almost two months after his receipt of the Decision of the RTC. This is a significant fact which militates
against the instant petition.
Going to the extreme, and assuming that an application for probation from one who had appealed the
trial court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the
petition is a clear statement that the petitioner was up for execution of judgment before he filed his
application for probation. P.D. No. 968 says that the application for probation must be filed "within the
period for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that
the RTC's decision had attained finality, and no appeal therefrom was possible under the law. Even
granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to
the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up
for actual execution before the application for probation was attempted by the petitioner. The
petitioner did not file his application for probation before the finality of the said judgment; therefore,
the petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on the proposition that an application for probation may yet be
granted even if it was filed only after judgment has become final, the conviction already set for
execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must
be after the decision of the RTC had become final, for him to file the application for probation with the
trial court, is to stretch the law beyond comprehension. The law, simply, does not allow probation after
an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive
remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties
were already probationable, and in his appeal, he asserted only his innocence and did not even raise the
issue of the propriety of the penalties imposed on him, and finally, he filed an application for probation
outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant
petition for review should be as it is hereby DENIED.
RATIO: Rule 117 Section 3 (f) Grounds. The accused may move to quash the complaint or information on
any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification;
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent
Rule 117 Section 9. Failure to move to quash or to allege any ground therefor. The failure of the accused
to assert any ground of a motion to quash before he pleads to the complaint or information, either
because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a
waiver of any objections except those based on the grounds provided for in paragraphs (a),
(b), (g), and (i) of Section 3 of this Rule.