G.R. No. 102131 - AUGUST 1992 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. 102131August 31, 1992 Franco Gorion vs. Regional Trial Court of Cebu, et al. G.R. No. 93238August 31, 1992 National Power Corp. vs. Court of Appeals, et al. G.R. No. 92758August 31, 1992 Emilio Venegas vs. National Labor Relations Commission, et al. G.R. No. 75959August 31, 1992 Victoriano V. Orocio vs. Commission On Audit, et al. G.R. No. 66253August 31, 1992 Merto Port Service, Inc. vs. Intermediate Appellate Court G.R. No. 65532August 31, 1992 Concepcion Pelaez Vda. De Tan, et al. vs. Intermediate Appellate Court, et al. G.R. No. 48532August 31, 1992 Hernando B. Conwi, et al. vs. Court of Tax Appeals, et al. G.R. No. 74740August 28, 1992 People of the Philippines vs. Danilo Sanchez G.R. No. 59436August 28, 1992 People of the Philippines vs. Delfin Molina, et al. G.R. No. 94374August 27, 1992 Philippines Long Distance Tel. Co., vs. Eastern Telecom. Phils. Inc., et al. G.R. No. 91129August 25, 1992 People of the Philippines vs. Antonio Pablo G.R. No. 101630August 24, 1992 Victor De Jesus vs. Court of Appeals, et al. G.R. No. 100401August 24 ,1992 Consolidated Dairy Products Co., et al. vs. The Court of Appeals, et al. G.R. No. 85286August 24, 1992 Basilio A. Balasbas vs. Nat'l. Labor Relations Com., et al. G.R. No. 101858August 21, 1992 Batangas Laguna Tayabas Bus Company vs. National Labor Relations, et al. G.R. No. 96810August 21, 1992 Heirs of Araneta vs. Court of Appeals, et al. G.R. No. 94299August 21, 1992 People of the Philippines vs. Ricardo Mallari G.R. No. 94115August 21, 1992 Rodolfo E. Aguinaldo vs. Luis Santos, et al. G.R. No. 91846August 21, 1992 People of the Philippines vs. Alfredo O. Maclid G.R. No. 91646August 21, 1992 People of the Philippines vs. Romil I. Marcos G.R. No. 90036August 21, 1992 People of the Philippines vs. Raymundo L. Gonzaga G.R. No. 95305August 20, 1992 Lindain, et al. vs. Court of Appeals, et al. G.R. Nos. 91004-05August 20, 1992 Joseph Tay Chun Suy vs. Court of Appeals, et al. G.R. No. 80739August 20, 1992 Gracia R. Joven vs. Court of Appeals, et al. G.R. No. 96182August 19, 1992 Marcelo Fernando vs. Honorable Sandiganbayan, et al. G.R. No. 85997August 19, 1992 Hortensia L. Starke vs. Philippine Sugar Commission, et al. A.M. No. MTJ-90-496August 18, 1992 Marcelo B. Asuncion, et al. vs. K. Casiano Anunciacion G.R. No. 101566August 17, 1992 Florencio A. Ruiz, Jr., et al. vs. Court of Appeals, et al. G. R. No. 94555August 17, 1992 People of the Philippines vs. Eduardo Labalan Ocimar, et al. G.R. No. 75112August 17, 1992 Filamer Christian Institute vs. Intermediate Appellate Court G.R. No. 100969August 14, 1992 Carlos Ranara vs. National Labor Relations Commission, et al. A.C. No. 3187August 14, 1992 Myrna D. Roque vs. Feliciano B. Clemencio G.R. No. 100285August 13, 1992 People of the Philippines vs. Napoleon Duque G.R. No. 62556August 13, 1992 Venancio Gonzales, et al. vs. Court of Appeals, et al. G.R. No. 100942August 12, 1992 Lucio Tan vs. Court of Appeals, et al. G.R. No. 100490August 12, 1992 Philippine Rabbit Lines, Inc. vs. National Labor Relations Commission, et al. G.R. No. 98325August 12, 1992 Lucino Diaz vs. Court of Appeals, et al. G.R. No. 93516August 12, 1992 People of the Philippines vs. Basilio Damaso G.R. No. 91491August 12, 1992 People of the Philippines vs. Marcelo Almenario G.R. No. 80491August 12, 1992 J. Artie Vergel De Dios vs. Court of Appeals, et al. G.R. No. 64019August 12, 1992 Bacolod-Murcia Milling Co., Inc. vs. Intermediate Appellate Court G.R. No. 99431August 11, 1992 Goldloop Properties, Inc. vs. Court Appeals, et al. G.R. No. 79664August 11, 1992 Andres Villavilla, et al. vs. Court of Appeals, et al. G.R. No. 102795August 10, 1992 Damian Ogburn, et al. vs. Court of Appeals, et al. G.R. No. 102549August 10, 1992 Edwin B. Javellana vs. Department of Interior And Local Gov't., et al. G.R. No. 97764August 10, 1992 Levy D. Macasiano vs. Roberto C. Diokno, et al. G.R. No. 97753August 10, 1992 Caltex (Philippines), Inc. vs. Court of Appeals G.R. No. 97611August 10, 1992 People of the Philippines vs. Rogelio Talento G.R. No. 96126August 10, 1992 Esteria F. Garciano vs. Court of Appeals, et al. G.R. No. 95832August 10, 1992 Maynard R. Peralta vs. Civil Service Commission G.R. No. 101512August 7, 1992 Nilda Gabriel, et al. vs. Court of Appeals, et al. G.R. Nos. 101127-31August 7, 1992 People of the Philippines vs. Cresencia C. Reyes G.R. No. 95838August 7, 1992 Marcelino Laureto vs. Court of Appeals, et al. G.R. No. 95431August 7, 1992 Florencia De La Calzada-Cierras, et al. vs. Court of Appeals, et al. G.R. No. 91797August 7, 1992 Widows And Orphans Asso., Inc. vs. Court of Appeals, et al. G.R. No. 76966August 7, 1992 Caffco International Limited vs. Ministry of Labor & Employment, et al. G.R. No. 72001August 7, 1992 People of the Philippines vs. Romeo Bechayda A.M. No. 91-660August 7, 1992 Unknown Mun. Councilor of Sto. Domingo vs. Mario V. Alomia, Jr. A.M. No. P-90-408August 7, 1992 Bernardo P. Pardo vs. Antonio D. Velasco G.R. No. 105628August 6, 1992 Rodulfo Sarmiento vs. Commission On Elections, et al. G.R. No. 101279August 6, 1992 Philippines Ass. of Service Exporters, Inc. vs. Ruben D. Torres, et al. G.R. No. 97952August 6, 1992 People of the Philippines vs. Alvin C. Liquen G.R. No. 96635August 6, 1992 Atlantic, Gulf of Manila vs. Bienvenido E. Laguesma, et al. G.R. No. 94490August 6, 1992 Jose De Luna vs. Court of Appeals, et al. G.R. No. 60506August 6, 1992 Figuracion Vda. De Maglana, et al. vs. Francisco Z. Consolacion, et al. G.R. No. 102448August 5, 1992 Ricardo Cuartero vs. Court of Appeals, et al. G.R. No. 101428August 5, 1992 Isabelita Vital-Gozon vs. Court of Appeals, et al. G.R. No. 100138August 5, 1992 Juan S. Armamentos vs. National Labor Relations Commission G.R. No. 97319August 4, 1992 Godofredo T. Swan, et al. vs. Hon. Court of Appeals, et al. G.R. No. 97291August 5, 1992 Rufino Misa, et al. vs. Court of Appeals, et al. G.R. No. 82782August 5, 1992 Jose B. Tiongco vs. Philippines Veterans Bank, et al. G.R. No. 57127August 5, 1992 Rhodora Del Castillo vs. Candido Aguinaldo, et al. G.R. No. 47158August 5, 1992 Angustina M. Ibay vs. Court of Appeals, et al. G.R. No. 102869August 4, 1992 Sen Po Ek Marketing Corp. vs. Court of Appeals, et al. G.R. No. 100752August 4, 1992 People of the Philippines vs. Danilo Diaz G.R. No. 100511August 4, 1992 Benito Trinidad, et al. vs. Luis Cabrera, et al. G.R. No. 100399August 4, 1992 Teknika Skills And Trade Services vs. Nat'l. Labor Relations Commission, et al. G.R. No. 98251August 4, 1992 People of the Philippines vs. Danilo Cruda G.R. No. 95757August 4, 1992 People of the Philippines vs. Arsenio Rañola G.R. No. 91695August 4, 1992 People of the Philippines vs. Robert Malonzo G.R. No. 91160August 4, 1992 People of the Philippines vs. Felix D. Fulgarillas G.R. No. 93143August 4, 1992 People of the Philippines vs. Maximo R. Race, Jr. G.R. NO 90802August 4, 1992 People of the Philippines vs. Tom P. Chanas G.R. No. 87434August 5, 1992 Philippines American Gen. Insurance Co., Inc., et al. vs. Sweet Lines, Inc., et al. G.R. No. 86436August 4, 1992 People of the Philippines vs. Jovencio De Paz G.R. No. 83190August 4, 1992 Cebu Seamen's Asso., Inc. vs. Pura Ferrer-Calleja, et al. G.R. No. 75363August 4, 1992 Firestone Tire Co. of the Philippines vs. Nat'l Labor Relations Comm., et al. G.R. No. 97306August 3, 1992 People of the Philippines vs. Mario A. Tuboro G.R. No. 95703August 3, 1992 Rural Bank of Bombon vs. Court of Appeals G.R. Nos. 85962-63August 3, 1992 Rosario Gacos, et al. vs. Court of Appeals, et al. G.R. No. 78341August 3, 1992 Turiano H. San Andres vs. Court of Appeals, et al. G.R. No. 95583August 2, 1992 People of the Philippines vs. Edgardo Wenceslao, et al. The Lawphil Project - Arellano Law Foundation, Inc. Franco Gorion vs. Regional Trial Court of Cebu, et al. National Power Corp. vs. Court of Appeals, et al. Emilio Venegas vs. National Labor Relations Commission, et al. Victoriano V. Orocio vs. Commission On Audit, et al. Merto Port Service, Inc. vs. Intermediate Appellate Court Concepcion Pelaez Vda. De Tan, et al. vs. Intermediate Appellate Court, et al. Hernando B. Conwi, et al. vs. Court of Tax Appeals, et al. People of the Philippines vs. Danilo Sanchez People of the Philippines vs. Delfin Molina, et al. Philippines Long Distance Tel. Co., vs. Eastern Telecom. Phils. Inc., et al. People of the Philippines vs. Antonio Pablo Victor De Jesus vs. Court of Appeals, et al. Consolidated Dairy Products Co., et al. vs. The Court of Appeals, et al. Basilio A. Balasbas vs. Nat'l. Labor Relations Com., et al. Batangas Laguna Tayabas Bus Company vs. National Labor Relations, et al. Heirs of Araneta vs. Court of Appeals, et al. People of the Philippines vs. Ricardo Mallari Rodolfo E. Aguinaldo vs. Luis Santos, et al. People of the Philippines vs. Alfredo O. Maclid People of the Philippines vs. Romil I. Marcos People of the Philippines vs. Raymundo L. Gonzaga Lindain, et al. vs. Court of Appeals, et al. Joseph Tay Chun Suy vs. Court of Appeals, et al. Gracia R. Joven vs. Court of Appeals, et al. Marcelo Fernando vs. Honorable Sandiganbayan, et al. Hortensia L. Starke vs. Philippine Sugar Commission, et al. Marcelo B. Asuncion, et al. vs. K. Casiano Anunciacion Florencio A. Ruiz, Jr., et al. vs. Court of Appeals, et al. People of the Philippines vs. Eduardo Labalan Ocimar, et al. Filamer Christian Institute vs. Intermediate Appellate Court Carlos Ranara vs. National Labor Relations Commission, et al. Myrna D. Roque vs. Feliciano B. Clemencio People of the Philippines vs. Napoleon Duque Venancio Gonzales, et al. vs. Court of Appeals, et al. Lucio Tan vs. Court of Appeals, et al. Philippine Rabbit Lines, Inc. vs. National Labor Relations Commission, et al. Lucino Diaz vs. Court of Appeals, et al. People of the Philippines vs. Basilio Damaso People of the Philippines vs. Marcelo Almenario J. Artie Vergel De Dios vs. Court of Appeals, et al. Bacolod-Murcia Milling Co., Inc. vs. Intermediate Appellate Court Goldloop Properties, Inc. vs. Court Appeals, et al. Andres Villavilla, et al. vs. Court of Appeals, et al. Damian Ogburn, et al. vs. Court of Appeals, et al. Edwin B. Javellana vs. Department of Interior And Local Gov't., et al. Levy D. Macasiano vs. Roberto C. Diokno, et al. Caltex (Philippines), Inc. vs. Court of Appeals People of the Philippines vs. Rogelio Talento Esteria F. Garciano vs. Court of Appeals, et al. Maynard R. Peralta vs. Civil Service Commission Nilda Gabriel, et al. vs. Court of Appeals, et al. People of the Philippines vs. Cresencia C. Reyes Marcelino Laureto vs. Court of Appeals, et al. Florencia De La Calzada-Cierras, et al. vs. Court of Appeals, et al. Widows And Orphans Asso., Inc. vs. Court of Appeals, et al. Caffco International Limited vs. Ministry of Labor & Employment, et al. People of the Philippines vs. Romeo Bechayda Unknown Mun. Councilor of Sto. Domingo vs. Mario V. Alomia, Jr. Bernardo P. Pardo vs. Antonio D. Velasco Rodulfo Sarmiento vs. Commission On Elections, et al. Philippines Ass. of Service Exporters, Inc. vs. Ruben D. Torres, et al. People of the Philippines vs. Alvin C. Liquen Atlantic, Gulf of Manila vs. Bienvenido E. Laguesma, et al. Jose De Luna vs. Court of Appeals, et al. Figuracion Vda. De Maglana, et al. vs. Francisco Z. Consolacion, et al. Ricardo Cuartero vs. Court of Appeals, et al. Isabelita Vital-Gozon vs. Court of Appeals, et al. Juan S. Armamentos vs. National Labor Relations Commission Godofredo T. Swan, et al. vs. Hon. Court of Appeals, et al. Rufino Misa, et al. vs. Court of Appeals, et al. Jose B. Tiongco vs. Philippines Veterans Bank, et al. Rhodora Del Castillo vs. Candido Aguinaldo, et al. Angustina M. Ibay vs. Court of Appeals, et al. Sen Po Ek Marketing Corp. vs. Court of Appeals, et al. People of the Philippines vs. Danilo Diaz Benito Trinidad, et al. vs. Luis Cabrera, et al. Teknika Skills And Trade Services vs. Nat'l. Labor Relations Commission, et al. People of the Philippines vs. Danilo Cruda People of the Philippines vs. Arsenio Rañola People of the Philippines vs. Robert Malonzo People of the Philippines vs. Felix D. Fulgarillas People of the Philippines vs. Maximo R. Race, Jr. People of the Philippines vs. Tom P. Chanas Philippines American Gen. Insurance Co., Inc., et al. vs. Sweet Lines, Inc., et al. People of the Philippines vs. Jovencio De Paz Cebu Seamen's Asso., Inc. vs. Pura Ferrer-Calleja, et al. Firestone Tire Co. of the Philippines vs. Nat'l Labor Relations Comm., et al. People of the Philippines vs. Mario A. Tuboro Rural Bank of Bombon vs. Court of Appeals Rosario Gacos, et al. vs. Court of Appeals, et al. Turiano H. San Andres vs. Court of Appeals, et al. People of the Philippines vs. Edgardo Wenceslao, et al. The Lawphil Project - Arellano Law Foundation, Inc.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 102131 August 31, 1992
FRANCO GORION,petitioner,
vs.
REGIONAL TRIAL COURT OF CEBU, Branch 17, presided by HON. JOSE BURGOS, PEOPLE OF THE PHILIPPINES, represented by CITY PROSECUTOR RODULFO PEREZ and BONIFACIO BACALTOS,respondents.
Eutiquiano V. Bilocura for petitioner.
DAVIDE, JR.,J.:
May an order dismissing a criminal case after the accused had been arraigned, issued in open court through inadvertence or mistake during a hearing that had already been cancelled, be set aside by the court and the case tried without placing the accused in double jeopardy?
This is the issue in this case.
On 17 October 1989, after conducting the appropriate preliminary investigation pursuant to a complaint filed by one Bonifacio Bacaltos, the Office of the City Prosecutor of Cebu City filed with the Regional Trial Court of Cebu an information charging the petitioner with the crime of Estafa involving the amount of P50,000.00. The case was docketed as Criminal Case No. CBU-167261and was raffled to Branch 17 of said court.
Upon his arraignment on 12 March 1990, the petitioner entered a plea of not guilty and the court set the pre-trial and trial of the case for 17 April 1990.2
The pleadings of the parties do not reveal what transpired on 17 April 1990. It appears, however, that hearing was again scheduled for 27 and 28 September 1990.
When the case was called for hearing on 27 September 1990, neither the petitioner nor the accused was present. Not wanting to take advantage of their absence, and considering that there were other cases to be heard, the prosecutor moved for the cancellation of the hearing on that date as well as the hearing to be held the following day, which the court granted. The hearing was reset to 4 October 1990. The pertinent portions of the transcript of stenographic notes of the proceedings on 27 September 1990 read:
ATTY. GAMELO FAJARDO:
I appear as private prosecutor in this case, Your Honor.
FISCAL RODOLFO PEREZ:
For the Prosecution, Your Honor.
COURT:
Where is (sic) the accused and the defense counsel?
ATTY. FAJARDO:
I have not seen them in the courtroom, Your Honor.
FISCAL PEREZ:
The private complainant is coming, Your Honor, but we do not want to take advantage of the absence of the accused and his defense counsel. We are willing to give them opportunity (sic) to present their evidence.
ATTY. FAJARDO:
Inasmuch as there are other cases to be heard by the Court this morning, we might as well reset the hearing.
FISCAL PEREZ:
I suggest that we cancel the hearing scheduled for today and also for tomorrow, September 28, 1990.
COURT:
What is your available calendar date?
(NOTE)
(The Fiscal, private prosecutor and the Court, after going over their available calendar dates, finally agreed to call this case again on October 4, 1990 at 11:00 A.M.)
COURT:
Upon suggestion of the prosecution, cancel the hearing scheduled for today and tomorrow, September 28, 1990, and reset the same to October 4, 1990, at 11:00 A.M. in order to give the prosecution the last opportunity to present its evidence. Fiscal Rodolfo Perez, and private prosecutor Atty. Gamelo Fajardo are notified in open court. Furnish Atty. Eutiquiano Bilocura, defense counsel, with a copy of this order. Notify the accused and the private complainant.3
Unfortunately, however, the case was still included in the trial calendar of the court for 28 September 1990. When the case was called for hearing on that date, only the Fiscal appeared for the prosecution. The court then issued the following order dismissing the case:
ORDER
When this case was called for hearing today for the presentation of evidence for the prosecution, only the Fiscal appeared without his witnesses.
In view thereof, this case is hereby ordered DISMISSED for failure to prosecute with costsde oficio.
Furnish the private complainant, the private prosecutor, defense counsel and the accused each with a copy of this Order.
SO ORDERED.4
Counsel for the petitioner, Atty. Eutiquiano Bilocura, received a copy of this order on 4 October 1990. However, he received a copy of the 27 September 1990 Order only on15 June 1992.5
The pleadings of the parties do not reveal what actually transpired on 4 October 1990. In any event, the case was called again on 31 May 1991, but the Court reset the hearing to 18, 22, 23 and 25 July 1991 on the ground that it had not yet received from the Chief Justice of this Court a reply to the Presiding Judge's request for an extension of the trial dates.6
On 2 July 1991, petitioner filed a Motion to Dismiss7alleging therein that the dismissal of the case by the court on 28 September 1990 without his consent amounted to his acquittal; hence, he would be placed in double jeopardy, prohibited under Section 21, Article III of the New Constitution in relation to Section 3(h), Rule 117 of the 1985 Rules of Criminal Procedure, if the case were to be "reopened or continued."
The trial court set aside the dismissal order of 28 September 1990 in its Order of 9 August 1991 on the ground that the court was only misled in issuing the same due to the stenographer's failure to transcribe the order given in open court issued the previous day; hence, it was issued without due process.
Also on 9 August 1991, the court denied the petitioner's motion to dismiss on the ground that the order of dismissal of 28 September 1990 was set aside in the aforesaid order of 9 August 1991.8
On 16 September 1991, petitioner filed a motion to reconsider the order denying his motion to dismiss; he alleges therein that he cannot be blamed or faulted for (a) any error in the dismissal of the case, (b) the failure of the stenographer to type the order, and (c) the inclusion of the case in the calendar of 28 September 1990. And even assumingarguendothat the court erroneously dismissed the information, he asserts that in accordance with this Court's ruling inPeople vs.Hernandez,9People vs.Ferrer,10People vs.Borja11andPeople vs.Gil,12the reopening, continuation thereof or appeal therefrom by the State will place him in double jeopardy.
In its Order of 18 September 1991, the court denied the aforesaid motion for reconsideration by reiterating the reasons upon which it anchored its denial order of 9 August 1991, and holding that the cases abovecited are not applicable since they involve dismissals grounded on lack of jurisdiction.13
Hence this petition, filed on 2 October 1991, wherein petitioner reiterates the issues raised and the arguments adduced before the trial court and asks this Court to set aside the Orders of 9 August 1991 denying the motion to dismiss, and 18 September 1991 denying the motion for reconsideration for having been rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.14
On 10 March 1992, after extensions of time were granted them, public respondents, through the Office of the Solicitor General, filed their Comment to the petition in compliance with the Resolution of 6 November 1991.15They assert therein that the order of dismissal of 28 September 1990 was a mistake and was thus issued without due process as there was in fact no hearing on that date; hence, the dismissal was null and void and of no effect. Besides, petitioner did not object to the dismissal; thus, he cannot invoke double jeopardy.
Petitioner filed, on 24 February 1992,16a Reply to the Comment. In refutation of the public respondents' assertion that he did not object to the dismissal, petitioner maintains that his silence or failure to object is not theexpress consentcontemplated by Section 7, Rule 117 of the Rules of Court that would bar him from pleading double jeopardy.
We resolved to give due course to the petition, consider the Comment as the Answer and decide this case on the merits.
The petition must fail.
It is obvious to this Court that the trial court was, on 28 September 1990, divested of jurisdiction,pro hac vice, to issue any order, much leas one of dismissal, in Criminal Case No. CBU-16727 for the simple reason that said case was already effectively removed from its trial calendar for that date in view of the previous day's order cancelling the hearing of the case on 27 and 28 September 1990. Plainly, the court should not have included the case for hearing in the 28 September 1990 trial calendar. The respondent Court attributed the mistake to the stenographer's failure to immediately transcribe the order. This, of course, is passing the buck too far.
The Judge, Clerk of Court and the prosecution should shoulder the blame because unless amnesia suddenly struck all of them simultaneously, it cannot be imagined that in a brief span of about twenty-four (24) hours, they had all forgotten about the order dictated in open court cancelling the hearing for 27 and 28 September 1990. For the prosecutor who orally moved for such cancellation and the Judge himself who dictated the said order, no plausible explanation may be offered for such lapse. Apparently, the latter did not read the calendar before the start of the session that day, and the branch clerk of court who probably prepared the same one or two days earlier, did not bother to review it anymore. And in the event that said clerk of court failed to attend the session, he or she did not read the minutes of the case as prepared by a subordinate. Upon the other hand, the prosecutor literally slept on his duty when he failed to immediately inform the court of the previous day's order of cancellation of hearing which obviously accounted for the absence of both the witness and the private prosecutor, and kept his unusual silence in the face of the open court dictation of the order of dismissal. This ineptitude cannot be condoned. Prosecutors should always be mindful of the heavy burden of responsibility which they bear in prosecuting criminal cases because they represent no less than the People of the Philippines and the State.
The erroneous dismissal order of 28 September 1990 was then issued capriciously and arbitrarily; it unquestionably deprived the State of a fair opportunity to present and prove its case. Thus, its right to due process was violated. The said order is null and void and hence, cannot be pleaded by the petitioner to bar the subsequent annulment of the dismissal order or a re-opening of the case on the ground of double jeopardy. This is the rule obtaining in this jurisdiction.
InPeople vs.Balisacan,17the accused at his arraignment pleaded not guilty and was allowed to present mitigating circumstances; he thus testified that he stabbed the deceased in self-defense. The trial court thereafter, without receiving the evidence for the prosecution, promulgated a decision acquitting the accused; the prosecution appealed therefrom. We then rejected the plea of double jeopardy therein not only because of the of fatal procedural flaw of failure to re-arraign the accused after he, in effect, vacated his plea of guilty thus resulting in the absence of a plea which is an essential element of double jeopardy, but also because:
. . . the courta quodecided the case upon the merits without giving the prosecution an opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental prerequisite, its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy. (People vs. Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235; McCleary vs. Hudspeth, 124 Fed. 2d. 445).
InPeople vs.Gomez,18where the motion of the Assistant City Fiscal to postpone the hearing of a criminal case — because the Special Prosecutor actively handling the cage was not served with a notice of the said hearing and the former was not ready because the records were with the latter — was denied by the respondent judge in open court, resulting in the eventual dismissal of the case, this Court ruled that such dismissal was capricious and rendered with grave abuse of discretion amounting to an excess of jurisdiction, thus depriving the state of a fair opportunity to prosecute and convict. Such a dismissal order, madesua sponte, for no proper reason at all, is void for being issued without authority.
InSerino vs.Zosa,19where both the Assistant Provincial Fiscal and private prosecutor were readily available, having merely stepped out of the courtroom when the Judge announced that he would first finish the trial of another case, but after said trial was completed and the criminal case was called again, both were not yet around, thus prompting the court to issue an order dismissing the case for failure to prosecute, which it nevertheless set aside on a motion for reconsideration, this Court rejected the plea of double jeopardy on the ground that the order of dismissal was null and void for lack of due process, and hence was correctly set aside by the Judge himself.
InPeople vs.Navarro,20this Court nullified a judgment of acquittal in a criminal case for light threats which was erroneously decided together with a case for frustrated theft against the same accused in a joint decision, despite the fact that there was no joint trial in said cases and no hearing had as yet been conducted in the light threats case, because in rendering the judgment in the latter, the Judge acted with abuse of discretion amounting to excess or lack of jurisdiction. It is therefore null and voidab initio. Having been rendered by a court which had no power to do so, it is as though there had been no judgment; it iscoram non judice.
InPeople vs.Pablo,21this Court struck down as having been issued with grave abuse of discretion amounting to lack of jurisdiction an order of the court acquitting the accused, later on amended to be merely one of dismissal of the case, issued when the prosecution asked for a postponement upon its inability to produce its last but vital and indispensable witness who would have testified on the cause of death of the victim, thesubpoenafor whom was received by his secretary, despite the fact that five (5) witnesses for the prosecution had already testified. Said order could not be used to invoke double jeopardy.
InPeople vs.Bocar,22where after the accused entered their plea of not guilty, the Judge, instead of receiving the evidence for the prosecution, conducted a summary investigation by directing questions to both the complainant and the accused and at the end thereof, issued an order dismissing the case on the ground that it is more civil than criminal, this Court ruled that since no evidence in law had as yet been entered into the records of the case, the dismissal order was arbitrary, whimsical and capricious — a veritable abuse of discretion which this Court cannot permit.
InSaldana vs.Court of Appeals,23where the trial judge had earlier issued an order sustaining the objection of the defense to the presentation of one Linel Garcia Cuevas on the ground that being a mere member of the complaining Valle Verde Bagong Lipunan Community Association, Inc., he cannot be considered as the complainant, and thereafter not only denied a motion to reconsider the said order but also barred the prosecution from presenting other members of the association from testifying and thereupon terminated the presentation of the prosecution, and, acting on a motion to dismiss the case for insufficiency of evidence, dismissed the case on said ground, this Court sustained the decision of the Court of Appeals annulling the said order and reinstating the criminal case in a petition forcertioraribrought before the latter.
Coming back to the instant case, the dismissal order of 28 September 1990 being null and void because the trial court lost its jurisdiction to issue the same and violated the right of the prosecution to due process, it follows that Criminal Case No. CBU-16726 continues to remain at that stage before the said order was issued. Consequently, the first jeopardy was not terminated and no second jeopardy threatened the accused.
The three (3) requisites of double jeopardy are: (1) a first jeopardy must have attached prior to the second, (2) the first jeopardy must have been validly terminated, and (3) a second jeopardy must be for the same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) when a valid plea has been entered, and (e) when the case was dismissed or otherwise terminated without the express consent of the accused.24
It having been shown that in this case, the requisites of a valid termination of the first jeopardy are not present, the petitioner cannot hide behind the protective mantle of double jeopardy.
WHEREFORE, the petition is DISMISSED for lack of merit. The respondent Court is hereby directed to immediately place in its trial calendar Criminal Case No. CBU-16726 for the reception of the evidence of the parties and thereafter to decide the name.
Costs against petitioner.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., is on leave.
Footnotes
1 Annex "A" of Petition;Rollo, 9-10.
2 Annex "B",Id.;Id., 11.
3Rollo, 57-59.
4 Annex "C" of Petition;Rollo, 13.
5 Certification of the Branch Clerk of Court, Elsie C.B. Quijano, dated 15 June 1992;Id., 68.
6 Order of 31 May 1991, Annex "D", Petition,op.cit.;Id.,
7 Annex "E" of Petition;Rollo,15-17.
8 Annex "F",Id.;Id., 19.
9 49 O.G. No. 12, 5342.
10 100 Phil. 124, [1956].
11 43 Phil. 618, [1922].
12 7 SCRA 888, [1968]; Annex "G" of PetitionsRollo, 20-21.
13 Annex "H",Id.;Id., 22.
14Id., 3.
15Id., 39-48.
16Rollo, 51-52.
17 17 SCRA 1119, 1122-1123 [1966].
18 20 SCRA 293 [1967].
19 40 SCRA 433 [1971].
20 63 SCRA 264 [1975].
21 98 SCRA 289 [1980].
22 138 SCRA 166 [1985].
23 190 SCRA 396 [1990].
24 People vs. Bocar,supra.; Saldana vs, Court of Appeals,supra.