Section 1
JUDGMENT is the adjudication by the court that the accused is
guilty or not guilty of the offense charged and the imposition of
the proper penalty and civil liability provided by the law.
A judgment to be valid:
1. Must be “penned”
2. Must be made and promulgated during the
incumbency of the judge who made the decision so
that if the decision was made and the judge retired
and was promulgated by the next judge, is null and
void. As a consequence, the new judge must make
another decision but no need of a hearing.
Section 2
How to make a decision CONVICTING the accused?
Specify in the decision whether the qualifying aggravating
circumstances or whether the circumstances affecting the
criminal liability of the accused were proven. This is one of the
matters which have to be considered when we pen for
conviction.
If the Judgment is one of ACQUITTAL:
 We have to specify on what aspect did we acquit the
accused as required by section 2 of this rule, because
this is also in connection with the civil liability, unless, the
filing of the civil liability is reserved since it will never
touch on the civil liability.
1. If the prosecution absolutely failed to prove the guilt
beyond reasonable doubt, the civil liability is not
extinguished if it is proven by preponderance of
evidence.
2. If it was proven that the accused did not commit the
crime at all, civil liability is extinguished.
Section 3
If the information was charged with more than one offenses
Remedy: file a motion to quash
Except: when the accused fails to object it before trial
(waived), the court can convict the accused to as many
offenses as there are charged in the information except for a
complex crime, continuing crime.
Section 4 and 5
Judgment in case of variance in the information and that
proved during trial.
Example: Charged with murder during presentation of
evidence but the prosecution was not able to prove the
qualifying circumstance for murder.
Q: Can the court convict the accused for homicide?
A: Yes, as long as that is necessary included in the crime as
charged in the information.
Necessarily included refers to the elements or essential
ingredients of the crime proved are the same elements in the
crime charged.
Remember: We are allowed to let the accused enter into a
plea of guilty to the lesser offense as long as the lesser
offense, which is proved, is necessary included in the
information.
Section 6
The reading of the decision must be done in the presence of
the accused and in open court (mandatory)
Except: when the conviction is for a LIGHT OFFENSE, the
accused’s counsel or a representative may stand for him.
 If the judgment is for Acquittal, it maybe promulgated
even in the absence of the accused.
 The presence of the counsel is NOT necessary
When the presence of the accused is required:
1. Arraignment
2. For purposes of identification
3. During promulgation not unless it is a conviction for a
light offense
If the Judge is temporarily absent during the promulgation,
the clerk of court can do it. (e.g. judge is out of the city or
province)
Rendition of judgment – the filing of the decision with the
clerk of court and not the reading of the decision.
In cases where the accused is detained in another province
other than the place where he is sued, the promulgation can be
done by the executive judge of the place where he is confined
upon the request of the judge who rendered judgment.
Executive judge is allowed:
1. To accept and approve notice of appeal
2. To approve bonds pending appeal
Except: if the decision is converted from a non-bailable to a
bailable offense, the appellate court (CA) can only resolve that
matter. (The matter of granting bail)
Example: You committed murder but the decision was only
homicide, can you post a bond before that court? NO, the
appellate court should decide that matter.
Promulgation in Absentia
Trials in Absentia (Jump bail) 2 rules are required:
1. The judgment is recorded in the criminal docket; and
2. A copy thereof is served upon the accused in his last
known address.
 As long as the accused is arraigned.
 The 1987 Constitution allows the court to proceed with
trial with absentia.
NOT trial in absentia when the accused is always present
during the trial but during promulgation despite notice, he failed
to appear and was without justifiable cause, promulgation may
proceed following the same rule, but shall lose all available
remedies afforded to him (e.g. Appeal)
Except: When the accused surrenders within 15 days from
promulgation AND file a motion to let him avail these remedies
and the court was satisfied with his absence, he may avail of
the remedies.
Section 7
Upon motion of the accused, judgment of CONVICTION may
be modified or set aside by the court BEFORE it has become
final or BEFORE an appeal has been perfected.
A judgment of conviction becomes final and executory:
1. No appeal within 15 from promulgation
2. Before the lapse of the 15 days to appeal the accused
commence to serve his sentence (voluntary act)
3. Waives in writing his right to appeal; and
4. Applied for probation
Questions from the class:
1. Q: Does the motion to modify the judgment can set
aside the judgment suspend the 15 period of
perfecting?
A: YES, it will suspend the running of the prescriptive
period.
Remember:
If your motion for reconsideration was denied, you are given a
Fresh period (of 15 days) to appeal.
2. Q: Does fresh period rule apply to cases under
prosecution office or preliminary investigation?
A: I would say so, it applies to all.
Fresh period – you are given the original period to appeal to
avail of the appropriate remedies.
Lecture 2 – finals
Rue 121
New Trial or Reconsideration
Q: Before, we had a rule where we discussed about the
reopening of a case. Where lies the difference between a
motion for new trial/reconsideration to a reopening of a
case? This is a very important rule.
When should you file and motion for new trial or
reconsideration and when should the reopening of the case
be filed?
A: motion for new trial: when the court has already rendered
judgment, it is filed before the lapse of the 15-day period or
before the finality of judgment.
Reopening of a case: it is file before the court renders final
judgment, either party can do that even the court – moto
propio
There are 4 instances when the judgment of conviction has
become final: you might think than in the finality, there is a
lapse of the 15-day period to appeal.
1. When the accused, even before the lapse of the 15-
day period, voluntarily commenced to serve his
sentence. He could no longer file a motion for new
trial the following day because in that case the
decision is already final.
2. (And 3 not given)
Q: another distinction? The requirement for new
trial/reconsideration?
A: new trial – must only be filed with the consent of the accused
or it can be done motu propio by the court but always with
the consent of the accused because that would place the
accused in double jeopardy.
Q: is that a requirement in reopening?
A: no.
JS: so those are the 2 major differences between new
trial/reconsideration and reopening of the case. So section 1 is
clear: Filing a motion for new trial/reconsideration must always
be with the consent of the accused. Meaning to say, it’s the
accused filing the same or it can also be done by the court
motu propio but always with the consent of the accused but
that consent of the accused is not needed for reopening of the
case because it can be at the instance of both the prosecution
and the accused – we are talking about the reopening of the
case which must be done before the court renders judgment.
Q: if the filing of a new trial/reconsideration requires always the
consent accused, would that give us the conclusion that the
prosecution therefor is not allowed to file new trial or
reconsideration?
A: the fiscal is not allowed to file the motion although there are
certain exceptions emphasized in rule 122.
JS: pero by virtue of Rule 121, it gives us the impression that
only the accused can file a motion for new
trial/reconsideration because even the court can do that only
with the consent of the accused. Why? Because if we allow
the prosecution to do that, it will place the accused in double
jeopardy, of course subject to exceptions which we will
discuss when we reach Rule 122.
Q: give me the period.
A: before the judgment became final.
JS: it is not quite accurate to say within 15-day period to
appeal. So before the judgment became final is most
accurate because there are 4 instances when a judgment
becomes final
Q: what are the 2 grounds for new trial enumerated by the
rules?
A: Section 2. Grounds for a new trial. — The court shall grant a
new trial on any of the following grounds:
a. The errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed
during the trial;
b. The new and material evidence has been discovered
which the accused could not with reasonable diligence
have discovered and produced at the trial and which if
introduced and admitted would probably change the
judgment.
JS: for (b) there are 3 requisites, I’m sure of that, you memorize
- on the ground of newly discovered evidence:
1. Newly discovered
2. Not known by the accused during trial
3. It would probably alter the decision of the court.
Q: what is the sole ground for reconsideration?
A: Section 3. Ground for reconsideration. — The court shall
grant reconsideration on the ground of errors of law or fact in
the judgment, which requires no further proceedings.
JS: these are committed by the court in rendering its judgment.
The prosecution can already file a motion for reconsideration
in certain instances. Example, when there is no award of civil
liability but yet the decision mentioned that there is civil
liability because it was proven by the prosecution by
preponderance of evidence. It will not affect the criminal
aspect of the case because the motion for reconsideration is
anchored on the civil aspect of the case or when the court
failed to determine whether there was a corresponding civil
liability precisely, I tell you, when we render our decision we
must be particular it was simply because the prosecution
was not able to prove the case beyond reasonable ground,
or the decision of the court was because the accused did not
commit the crime at all – because this is for the purpose of
civil liability. In that instance, the prosecution can file a
motion for reconsideration – not on the criminal aspect of the
case but on civil aspect because the court failed to award the
civil liability even when the prosecution was able to prove it.
JS: before we proceed, I would like to emphasize that unlike in
civil procedure where we apply the pro-forma rule; that is not
applied in criminal cases. Pro-forma means that when you
file a motion for reconsideration and then you merely
reiterated your arguments which are already considered by
the court. That will render your motion pro-forma and that will
be denied by the court. Effect is, it will not toll the running of
the period for appeal. That is also to protect the interest of
the accused. Ok clear?
Q: of course, the motion must be in what form?
A: Section 4. Form of motion and notice to the prosecutor. —
The motion for a new trial or reconsideration shall be in
writing and shall state the grounds on which it is based. If
based on a newly-discovered evidence, the motion must be
supported by affidavits of witnesses by whom such evidence
is expected to be given or by duly authenticated copies of
documents which are proposed to be introduced in evidence.
Notice of the motion for new trial or reconsideration shall be
given to the prosecutor.
JS: ok in writing, state the ground upon which your motion is
anchored and with notification to the prosecutor. In fact there
must be a notice of hearing.
Q: is there a need that your motion must contain and affidavit of
merit? Particularly when your motion is anchored for new trial
on the ground of newly discovered evidence.
A: No. this is another difference between civil and criminal. In
civil cases, there is a need for affidavit of merit. In criminal
cases, no.
JS: why? Because if it is based in newly discovered evidence,
we allow the introduction of witnesses and the grounds of
your motion can best be testified by the witnesses. The
affidavit of merit, my dear students, you must state there the
grounds upon which your motion is anchored.
Q: when you file a motion for new trial, what should your motion
state aside from the motion itself?
A: if it is grounded on newly discovered evidences, it should be
supported by affidavit of witnesses or duly authenticated
document that would support the motion.
Q: what about in the motion for reconsideration? Is that a
requirement in motion for reconsideration?
A: no but you must distinctly point out the errors or irregularity
which were committed by the court when it rendered its
decision.
Q: give examples of such error of law or irregularity which
might warrant a new trial because those substantially
affected the rights of the accused.
A: (1) when the accused in charged with an offense which the
conduct of preliminary investigation is a right but the accused
was denied of the right to preliminary investigation; (2) the
court did not grant the accused of ample time to prepare for
trial; (3) accused was not assisted by the counsel of his
choice but the court insisted PAO.
Q: we talked about newly discovered evidence not known
during trial which if presented will alter the results of the
case. What about if these will be recantations of eye
witnesses of the prosecution, could it be a good ground for
new trial? Although the law disfavors recantations, it is given
less weight by the SC.
A: No.
JS: No. like what I said, recantations of witnesses are
disfavored. Existing jurisprudence and decisions of the court
 – the witnesses are mere corroborative witnesses not a
ground for new trial. Because there could be instances that
in recantation, there is always money involved. But there is
an exception, while recantation of prosecution witnesses is
not a ground for new trial however when the court allows the
same, it will be valid. Because there is only 1 eyewitness of
the prosecution and then he recanted which affected the
prosecution’s case and rendered it doubtful. (People vs.
Soriano)
JS: I explained to you the grounds, what should be
accompanied so you would be very particular on which
ground is your motion new trial is anchored. If it is on newly
discovered evidence, see to it that you must support this with
affidavits of witnesses and pertinent documents to support
the motion. If it based on error or law or irregularity, you must
distinctly set forth what is the error of law or irregularity upon
which your motion for new trial is based. The same holds
true, likewise, on a motion for reconsideration based on error
or irregularity, you must set forth what is that error of law or
facts which the court committed in rendering the assailed
decision. Clear?
JS: important, it is only in a motion for new trial that the court
allows the presentation of new witnesses; in a motion for
reconsideration it is not allowed.
Q: what is the effect if the court grants new
trial/reconsideration?
A: Section 6. Effects of granting a new trial or reconsideration.
— The effects of granting a new trial or reconsideration are
the following:
a. When a new trial is granted on the ground of errors of law
or irregularities committed during the trial, all proceedings
and evidence affected thereby shall be set aside and
taken anew. The court may, in the interest of justice, allow
the introduction of additional evidence.
b. When a new trial is granted on the ground of newly-
discovered evidence, the evidence already adduced shall
stand and the newly-discovered and such other evidence
as the court may, in the interest of justice, allow to be
introduced shall be taken and considered together with the
evidence already in the record.
c. In all cases, when the court grants new trial or
reconsideration, the original judgment shall be set aside or
vacated and a new judgment rendered accordingly.
JS: in a new trial, where you have newly discovered evidences,
your ultimate objective is for acquittal of the accused. That is
precisely the reason why we allow the introduction of witnesses
and that the previous decision is vacated, set aside and a new
decision is now acquitting the accused.
Q: in a motion for reconsideration, is the judgment vacated or
set aside?
A: It depends. If it is a question of law, the judgment rendered
is set aside and a new judgment will be rendered. If its question
of fact modification to the judgment in consonance to the newly
presented facts will be rendered
JS: the filing of a motion for new trial/reconsideration will toll or
suspend the running of the prescriptive period. That is why
very important that in criminal cases we do not apply the pro-
forma rule kasi in civil procedure, when the motion turned out
to be pro-forma, because these are merely reiterations of
previous arguments, sorry that will not stop the running of the
prescriptive period to appeal. But since that is not applied in
criminal cases, the mere filing, I repeat, of the motion now
tolls the running of the prescriptive period so that when it is
denied you still have the fresh period rule of 15 days now to
file your appeal.
RULE 122
Appeal
Q: this a decision of the first level court, you want to appeal the
conviction to the RTC, what should you do? What is your
remedy?
A: a notice of appeal should be filed in the court which
rendered the decision – that is the first level court within 15
days from promulgation.
Q: RTC in the exercise of its original jurisdiction, you are
aggrieved by the decision of the RTC, what is your remedy?
A: notice of appeal before the RTC to the CA
Q: what about if you it is purely a question of law? Would you
file a notice of appeal?
A: it must be a review on certiorari under rule 45 before the SC.
JS: I repeat, question of fact and law – file a notice of appeal
before RTC to the CA, but if your appeal is only premised on
pure question of Law, you go to the SC via petition for review
on certiorari under Rule 45.
JS: what about (kim’s phone, nahulog) sorry. Oh. My.
Goodness.
Class: hahahahaaha
JS: would that affect your ano, the cellphone?
Ms. Osias: No sir.
JS: No because there is a cover – there is no cover.
Class: ahahahahahaha
JS: Well, I should not be blamed for that. Ok do you think it is
still running?
Class: yes sir
JS: OK
JS: what about if it is the exercise of the RTC in its appellate
jurisdiction?
A: a petition for review under Rule 42.
JS: when you talk about appellate, the decision comes
originally from the first level court. Tapos you appeal that by
notice of appeal to the RTC, you were not contented with the
decision because it was affirmed, you want to go to the CA,
you do that by means of petition for review, not certiorari,
only petition for review under rule 42 of the 1997 Rules of
Civil Procedure. Because that is supposed to be the remedy
if you want to appeal a decision of RTC in the exercise of its
appellate jurisdiction
Q: the court convicted the accused and meted on the accused
the penalty of perpetua, or because it was a special law – life
imprisonment. (Don’t use life imprisonment for revised penal
code, the term there is perpetua; for special law he term is
life imprisonment) do you have to appeal? Do you have to
file a notice of appeal?
A: yes.
JS: yes, that is a misinterpretation. Many lawyers are victims of
this. Many cases in Basey, all appeals were dismissed there
was no notice of appeal, by the former judge, not me.
Because I noticed before since there was an abolition of
death penalty, diba it reduced to perpetua?, what they did
there is to bring the records immediately to the CA. That’s
wrong; there should be a notice of appeal. Because it is only
when the court meted out death penalty when there is an
automatic appeal. Death penalty lang. So as of now since
there is no death penalty, all decisions, you always do that
via a notice of appeal. And did you know, we presume that
there is death penalty, automatic review to the CA – People
vs. Mateo. Diba dapat before SC now CA na tayo. If you are
not contented by the decision of the CA, it is the time now
when you can go the SC via a notice of appeal.
JS: Diba automatic review to the court of appeals. You can go
the SC and this is where the law requires you to file a notice
of appeal from the CA to the SC. Yun. Only in death penalty.
In other cases, you file a notice of appeal from RTC to CA,
you are aggrieved by the decision, you can go now to the SC
via petition for review on certiorari under Rule 45 along with
an appeal on pure question of law of a decision of RTC in the
exercise of its original jurisdiction. Kasi pag appellate, your
remedy is petition for review under Rule 42.
JS: and now, under that circular (attached in the book of
Regalado) whether the penalty is death, perpetua, life
imprisonment – there is always no eligibility for parole
pursuant to the Indeterminate Sentence Law.
Lecture 3 – finals
Rule 122
Appeal
JS: if you are talking about appeals on criminal cases, very
basic, it talks about conviction. Because there could be no
appeal on acquittal. Now we are discussing SC
Administrative Circular No. 00-5-03, by way of supplement to
Rule 122 on the 2000 Revised Rules on Criminal Procedure.
Q: from the first level court to the RTC you that by?
A: Notice of appeal or ordinary appeal.
JS: the notice of appeal should be filed in the court which
rendered the decision
Q: upon receipt of the notice of appeal of the clerk of court of
the first level court, within 5 days, what is his (clerk) duty?
A: within 5 days, upon perfection of the appeal, the clerk of the
first level court is duty-bound to transmit all the records of the
case to the appellate court (RTC)
Q: upon receipt of the clerk of RTC of the records, what is duty
of the clerk?
A: the clerk of court will issue a notice to both parties. In the
notice, there must an order requiring the parties to submit
their respective memorandum within 15 days from receipt of
the notice.
JS: actually in civil cases, that is the same procedure. If no
memorandum is filed, particularly by the appellant that will
cause the dismissal of the case. But that is in civil cases. The
rule just says that the clerk of court will send da notice to
both parties that the records are already at the RTC further
requiring them to submit their memorandum within 15 days
from receipt of the notice. After which the case is deemed
submitted.
Q: what about if this is a decision of the RTC. What is the mode
of appeal?
A: an ordinary notice of appeal should be filed in that particular
court
JS: when you talk about ordinary appeal that means filing of a
notice of appeal. But remember there has to be payment
also of appeal fees unless you are a pauper litigant, assisted
by the PAO – in such case there is no appeal fees. But in all
other case, there must be payment of appeal fees together
with the notice of appeal, my dear students.
JS: in the RTC, you have to distinguish whether the decision
subject of the appeal was decided by the RTC in the
exercise of its original jurisdiction. If it is original jurisdiction,
you do that by filing an ordinary notice of appeal.
Q: what about if this is in the exercise of its appellate
jurisdiction? Meaning to say this is a decision emanating
from the first level court, it was appealed to the RTC – still
affirmed. You are not contented with the decision, you want
to go the CA. definitely that cannot be done by an ordinary
appeal by means of filing a notice of appeal because under
our Rules and pursuant to the 1997 Rules of Civil Procedure,
the appellant should do what?
A: petition for review under rule 42.
JS: don’t call it certiorari. Petition lang for review under rule 42.
I repeat, if there is a question on the mode of appeal from the
RTC to CA, you distinguish whether the exercise of its
original jurisdiction or whether it’s the exercise of its
appellate jurisdiction. If original jurisdiction, only ordinary
appeal by way of notice of appeal; but if it is appellate
jurisdiction, you do that by means of a petition for review
under rule 42 of the 1997 Rules of Civil Procedure. It is not
mentioned, however, by Regalado, not unless your appeal is
on pure question of law and that is in the exercise of the
original jurisdiction of the RTC, you can go directly to the SC
via a petition for review on certiorari under Rule 45.
JS: so if you appeal, I repeat, in the exercise of RTC in its
original jurisdiction on pure question of law, you are allowed
to go directly to the SC via a petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure. Clear
tayo? There is a difference between 42 and 45. 42 is called
petition for review, 45 is petition for review on certiorari, 65 is
petition for certiorari only. That’s how you call your petitions.
Q: we presume there is death penalty. The RTC imposed death
penalty. Do you have to file a notice of appeal?
A: no. there will be automatic appeal.
Q: but would that be applied to perpetua/life imprisonment?
A: no because you still have to file a notice of appeal. The Rule
is very clear that there can only be automatic review on
death penalty. But have no more death penalty so meaning
to say, there is no more automatic review. So no death
penalty, only perpetua/life imprisonment with no illegibility for
parole.
Q: this is perpetua/life imprisonment. Notice of appeal to CA by
the accused, convicted. Still affirmed by the CA. you want to
go the SC, what is your mode?
A: notice of appeal.
JS: the rule is very clear, that is notice of appeal. All other
appeals, you do that be notice of appeal on certiorari under
Rule 45. Except lang conviction of perpetua/life
imprisonment. Even if it was done via an ordinary notice of
appeal to the CA, it is affirmed by CA, you want to go the SC,
it is still by notice of appeal.
Q: in cases when the CA affirmed the conviction of death
penalty of the accused. What should the CA do? Remember
that is automatic review from RTC to CA, that’s People vs.
Mateo, death penalty was affirmed by CA. what should the
CA do as far as its decision affirming the death penalty?
A: it will definitely render a decision but there will be no entry of
judgment rather it should be submitted directly to SC.
JS: take note. In cases when the CA will affirm a conviction of
death penalty, it will not issue and an entry of judgment but
rather it will certify the case and elevate and transmit the
records of the case to the SC. Parang automatic parin under
the provisions of this particular Rule. Clear tayo?
JS: I repeat for the last time:
 From the first level to the RTC – that is by way of ordinary
appeal. If you meet the word ordinary appeal, that is by
filing a notice of appeal within 15 days from promulgation.
Remember, in filing a motion for reconsideration you have
the fresh period rule – you are given the original 15-day
period to do your appeal upon receipt of the order denying
your motion for reconsideration.
 If this is from the RTC, you have to qualify whether it is an
exercise of its original or appellate jurisdiction. Unless it is
purely on question of law, you have to go the SC via
petition for review on certiorari under Rule 45. You do that
by ordinary appeal, that is notice of appeal, of course in
the RTC to the CA. But if it is in the exercise of its
appellate jurisdiction, you do that via petition for review
under Rule 42 of the of the 1997 Rules of Civil Procedure.
 If this is death penalty, no need for notice of appeal
because there is automatic review.
 If it is Perpetua/life imprisonment, you still have to file a
notice of appeal. If you are not yet content with the
decision of the appellate court, you can still go the SC via
a notice of appeal.
 All other decisions of the CA shall be coursed to the SC
via a petition for review on certiorari under Rule 45.
 If this is death penalty affirmed by the CA, the CA will not
issue an entry of judgment, rather it will certify the case
and transmit the records to the SC. Parang it is still
automatic review, so to speak, from the CA to SC only
when what is involved is death penalty. An entry of
judgment presupposes that the case is already final and
executory.
Q: can both party, the persecution and the accused, appeal the
case?
A: yes, both parties can appeal but there is a qualification.
Either party can appeal as long as it will not place the
accused in double jeopardy.
JS: On the part of the persecution, it must be done only by the
Office Solicitor General in behalf of the People of the
Philippines. Although there are certain instances where, like
example the case is filed by the prosecutor to RTC, we have
10 days to determine the existence of probable cause for the
purpose of issuing the warrant of arrest and if you are not
content, the court (RTC) will require the prosecutor to submit
additional evidences yet the case was dismissed. In such
case, the prosecutor can appeal the case through the OSG.
JS: the prosecution can appeal as long as the accused is not
place in double jeopardy. I repeat, the 15-day period to
appeal is gauge from the promulgation, not from the receipt
of the judgment. If there is a timely motion for
reconsideration, the appeal period is tolled until after the
court issues an order denying but you’re given the fresh
period of 15 days both in criminal and civil cases. We are
using the decision of the SC in the case of Neypes.
Q: enumerate the instances when an appeal can be done but
the accused is not placed on double jeopardy as a condition
sine qua non to the prosecution’s right to appeal in the
context Rules on Criminal Procedure.
Answer:
1. If that is based upon the motion or based upon the
express consent of the accused. (Like when the
accused files a motion to quash (before arraignment) or
motion to dismiss (after arraignment). When the motion to
quash was granted by the court, the prosecution can
appeal there is no double jeopardy because the case was
dismissed upon the motion of the accused)
2. When that is not an acquittal or that is an appeal
based on the decision not rendered by the court after
trial on the merits of the case (example: in the
determination of probable cause, the court found out there
is no probable cause. The prosecution can appeal)
3. If the appeal involves pure question of law. Because if
that is pure question of law and that is granted, the case is
remanded back to the trial court for further trial or of trial
based on the merits of the case.
4. The civil aspect of the case. If the court rendered the
decision, but failed to make an express finding on the civil
liability of the accused, you can file a motion for
reconsideration. It the motion is denied, you can go the
appellate court but only on the civil liability. In fact the
appeal on the civil aspect will not affect the criminal aspect
of the case.
JS: that’s why I told you when the court renders its judgment it
should determine whether it is based on proof beyond
reasonable doubt, because we can still award civil liability; or
on the fact that the accused did not committed the crime at
all, if that is the basis of the acquittal, it will carry with it the
extinguishment of the civil liability.
Q: when you do a notice of appeal, what is the requirement?
You are the accused now and you are represented by a
lawyer then you were convicted, you want to file a notice of
appeal, aside from filing what is the other procedural
requirement that should be part of your notice appeal?
A: as part of due process, there must be a notice to the
prosecution. Serve a copy of notice of appeal to the adverse
party.
Q: what is the mode of serving Notice of appeal?
A: made by personal service, if not possible could be by
registered mail to the address of the adverse party. (office,
residence of last know). If made via service mail, you must
explain it on your pleading why you resorted to registered
mail because the preferred service is personal.
Q: under section 8 or Rule 13, if personal or registered mail is
not practicable because of the whereabouts of the adverse
party is unknown, what is the remedy?
A: notify the clerk of court at that point.
JS: in section 7, personal and registered mail service is not
possible you resort to 8. We call it substituted service. You
do that via the clerk of the court where you are filing the
notice of appeal.
JS: registered mail – is via the post office, it is deemed filed at
the date you posted it at the post office. If it is a private
courier, it is deemed filed upon actual receipt.
Q: is failure to serve notice fatal to the appeal?
A: No. Appellee may waive his right to notice.
Q: the appellee did not waive his right but unfortunately the
lawyer failed to furnish the adverse party of the copy of the
notice of the appeal. Would it be fatal – that is the court will
deny the appeal?
A: as long as the appeal was filed on time, it may still be
considered by the court even there is no proof of service,
and when the interest of justice so requires.
JS: the failure to serve, as cited by the SC in several cases,
may not be fatal because it may be granted by the court
when the interest of justice so requires, as long as the filing
of notice of appeal was on time.
Q: can an appeal be withdrawn?
A: yes.
JS: when you become lawyers, when the penalty of your client
does not exceed 6 years, why would you appeal? You better
advice your client to apply for probation not unless you are very
close to the judge that is a different story.
Q: if this an appeal from MCT to the RTC, when can it be
withdrawn?
A: Section 12. Withdrawal of appeal. — Notwithstanding the
perfection of the appeal, the RTC, first level courts, as the
case may be, may allow the appellant to withdraw his appeal
before the record has been forwarded by the clerk of court to
the proper appellate court as provided in section 8, in which
case the judgment shall become final. The RTC may also, in
its discretion, allow the appellant from the judgment of a first
level court to withdraw his appeal, provided a motion to that
effect is filed before rendition of the judgment in the case on
appeal, in which case the judgment of the court of origin shall
become final and the case shall be remanded to the latter
court for execution of the judgment.
JS: in the MTC, you can withdraw before the records are
transmitted to the RTC. But you did not do that, the records
are not transmitted to the RTC, can you still withdraw? Yes.
That is discretionary upon the RTC, as long as your motion
to withdraw is filed before the appellate court renders a
decision.
JS: the right of lawyer to appear is only limited until after the
termination of the case on that court. So you need another
client-lawyer engagement if you want to retain him on
appeal. In fact the court may appoint a council the officio for
the accused on appeal when he could no longer pay the fee
for lawyers.
Lecture 4- finals
Review
JS: in fact there is a question in your midterm examination in
connection with this, no hot seat only for tonight. The rules
with that of the RTC is just the same unless there is a law
which expressly provides like the Rules on summary
Procedure. I was telling you before that if the case is within
the jurisdiction of the first level court, you have to determine
whether that is tried by the regular rules or whether that is
tried by the Rules on Summary Procedure.
Q: now, what are again the cases covered by Rules on
Summary Procedure?
Answer:
1. Violations of city or municipal ordinances
2. Violations of traffic Rules and regulations
3. Criminal cases with penalty of imprisonment not exceeding
6 months or a fine not exceeding 1000 pesos, irrespective
of the accessory and civil liabilities.
4. Reckless imprudence resulting to damage to property
which damage does not exceed 10,000 pesos
Q: some peculiar characteristics of the Rules on Summary
Procedure as distinguished from the regular rule
Answer:
1. If the prosecutor’s office files the information, the
court will not issue a warrant for the arrest of the
accused; instead it will issue an order requiring the
accused to submit his counter affidavit or affidavit of
his witnesses within 10 days. Is only when the accused
failed to comply with that order that the court may issue a
warrant for his arrest or when he failed to appear in court
whenever his presence is required.
JS: so definitely there is no warrant of arrest here. Parang
this are cases, we talked about, non-bailable but not
perpetua, because the law here does not require the
accused to post a bond or bail.
2. In terms of the direct testimony of the witnesses even
before SC Circular 12-8-8, they are now required to
submit their affidavits of witnesses which will form as
a direct testimony of these witnesses
JS: no affidavits, you cannot present the witnesses.
Although now, under SC Circular 12-8-8, in the first level
court it mandatory for all witnesses judicial affidavits; in
the second level court, it depends if the witness testifies
in the civil liability or the accused wants to be heard by
judicial affidavit where we order (judicial affidavit),
JS: when you are asked where lies the difference between
the Rules of Summary Procedure and that of 12-8-8, I
think the major difference is that in 12-8-8, there are
certain forms which the judicial affidavit have to conform
which is not required actually in the rules on summary
procedure
JS: but there are exceptions here, in Rebuttal or sur-
rebuttal – defense has already rested his case, the
prosecution can present a rebuttal after that, the
defense can now submit his sur-rebuttal.
 3. In rules on Summary Procedure, we do not call it pre-trial
instead it is called preliminary conference.
4. There is no presentation of witnesses, not unless the
court asked for clarificatory questions in which case the
parties are required to submit their respective
memorandum or position papers and the court will decide
on that.
JS: btw, the court cannot cross-examine, the court can
only ask clarificatory questions because, according to SC
in the very famous case of People vs. Larañaga, “the court
is not a wall flower” I love that, so we are allowed to ask
clarificatory questions but not to cross-examine.
JS: people vs. Larañaga, the Court is not a wall flower so we
can ask clarificatory questions. That justifies the court’s right
to ask clarificatory question because at the end of the day it
is the court that will render the decision, either to acquit of to
convict. That is in the interest of substantial justice
Q: along with this concept of the cases covered by the Rules
on Summary Procedure, there is conciliation before the
Lupon. This will happen when?
A: when the parties involved are residing in the same barangay
and the case penalized by an imprisonment not 1 year and
fine not exceeding 5,000.
JS: there has to be conciliation first before the Lupon, pursuant
to the provision of RA 7690 the Local Government Code of
the Philippines. Although you might just be surprised when
you are reading, before the local government code, PD 1508,
the Katarngan pambarangay Law is repealed. Before, if there
is no compliance with the Lupon, you can dismiss the case
on the ground of pre-maturity – that is the ground in PD
1508. But in the Local government Code, it is the failure to
comply with the condition precedent or lack of cause of
action.
JS: so failure to comply may give rise to a motion to
quash/dismiss on the ground of failure to comply with the
condition precedent or lack of cause of action.
Q: if the parties are residents of the same city but they belong
to different barangays, which barangay would you file your
complaint for conciliation?
A: at the election of the complainant – in the barangay where
the respondent is residing or any of the respondent’s
residence.
JS: in civil cases – where the property is located of any portion
of the property is located; in criminal cases – where any of
the respondents reside, at the election of the complainant
Q: instances when you don’t go the Lupon even if the penalty,
for example, does not exceed 1 year or the fine does not
exceed 5,000. You do not have to go the Lupon, you can go
directly and file the case in court? Exeptions?
Answer:
1. If the person is already under detention or
2. it involves petition for habeas corpus
3. When one of the party is a public officer sued in the official
performance of his functions
JS: in one decision of the SC, if in the Lupon the respondent
does not appear inspire notice for 2 times, the Lupon can
now issue the requisite Certificate to file an action. But if the
parties appeared and it can’t be settled in the Lupon, you
have to go to the Pangkat ng tagapagsundo. At the end of
the day it is the pangkat should issue the certificate to file
action. But non-appearance for at least 2 times, the Lupon
Secretary as certified by the chairman may issue the
corresponding certificate of action.
Q: an appeal before the CA, you call the parties as?
A: appellant and appellee
JS: appeal is within 15 days from promulgation, unless there is
a motion for reconsideration or new trial, you are given the
fresh period of 15 days.
Q: the appellant was ordered by the CA to submit appellant’s
brief within 30 days from the receipt of the order in 7 copies.
How many copies do you have to furnish to the appellee?
A: 2.
JS: the appellee has also 30 days from receipt of the
appellant’s brief to file the appellee’s brief. In the service of
notice, you have to certify that you have furnished the
appellee 2 copies of the brief (also furnish 2 copies of
appellee’s brief to the appellant)
Q: in your appellant’s brief, do you have to include assignment
or errors of the lower court?
A: in criminal cases, NO.
JS: in civil cases, when you make your appellant’s brief, you
have to have to include assignment of error because that is
the basis of the CA’s decision. No assignment of error, you
case is dismissed outrightly. But it is not required in criminal
cases.
Q: why?
A: in criminal cases, once it is appealed, it opened in its entirety
for review.
Q: what are the grounds to dismiss an appeal? Where the
particular appellate court who hear will dismiss your appeal
Answer:
1. The is not meritorious,
2. When the appeal is intended to delay
JS: but those are the grounds after the filing of appellant’s brief.
Q: but before the filing of the appellant’s brief, can there be
grounds so that the CA will dismiss your appeal?
A: yes:
1. Failure to file the appellant’s brief within the period as
prescribed by the Rule
2. If the accused jumped bail, escaped or flee – he loses the
remedies he has. Unless he surrenders within the
prescribed period and files a motion for reconsideration.
JS: although the 30-day period of filing the brief is not
extendable, the court may be extended in most compelling
reasons which only the court of appeals can determine. Btw,
after 30 days of the appellee’s brief also, you must file a
reply within 20 days.
JS: I told you before when the accused jumped bail; he loses
all the remedies he has including the right to appeal. Those
have the same effects. He was able to appeal because he
was present during the promulgation. But while the case was
on appeal he escaped from detention, he jumped bail, the
CA will have to dismiss the case.
Q: can there be a motion for new trial before the CA?
A: yes, on the ground of newly discovered evidences. Even in
civil cases, there si also a motion for new trial before the CA.
Q: when could you file the motion for new trial before the CA on
the ground of newly discovered evidence? It is always the
ground for new trial.
A: before the judgment becomes final. At any time after
perfection of the appeal and before the CA renders a
decision and before it becomes final.
JS: example: the case was decided by RTC. You have 15 days
to appeal or file a motion for new trial. You failed to appeal.
You appeal therefore and you found newly discovered
evidence, but the records were already transmitted to the
CA. you can still file, in the CA, a motion for new trial before
the CA renders a decision and before it becomes final and
executory.
Q: can you withdraw your appeal?
A: yes, it could be in the discretion of the court or could be a
matter of right.
Q: When is it a matter or right? When is it dependent upon the
discretion of the court?
A: before the filing of the appellant’s brief, it is a matter of right.
After filing appellant’s brief and before the CA renders
decision.
JS: btw, if the case is on appeal and it was noticed by the CA
that it was the accused himself who (the accused can file a
notice of appeal, it is allowed). What should the CA do?
A: the CA will appoint a counsel de oficio.
RULE 125
Procedure in the Supreme Court

Q: what is the first rule as far at the Rules on SC are
concerned?
A: Section 1. Uniform procedure. — Unless otherwise
provided by the Constitution or by law, the procedure in the
Supreme Court in original and in appealed cases shall be the
same as in the Court of Appeals
JS: so procedures before the SC are the same with the CA.
actually our lesson for tonight was discussed in you
Constitutional Law 2. These are only reiteration of the
established principles in Constitutional law particularly article
8 of the 1987 Philippine Constitution.
The rule is very clear that as far at the procedure as concerned
for the SC on criminal cases, these are the same with that of
the CA.
Q: Before the SC sits in division or sits en banc. If it sits in
division under the 1987 Philippines constitution, to affirm a
ruling of the lower court, it requires how many votes?
A: majority vote: 8 votes are required to affirm the ruling of a
lower court except in cases
JS: the SC sits in 2 division or en banc, section 5 of article 8 of
the Constitution enumerates the instances where the SC, in
deciding cases, sits en banc. And you were told that when
the SC sits en banc, to get the required vote – it should be a
majority vote of 8 votes. But there is one here where the vote
required is not only 8, but 10 votes of the justices sitting in
banc.
Q: en banc tayo, a majority votes of 8 are required to affirm the
ruling of a lower court except in cases where the law requires
not only a majority vote of 8 but it requires at least 10 votes
of the justices. So that is more than the majority, with 15
justices? So this case involves review on what?
A: constitutionality of law, executive agreement or treaty.
Q: now as far criminal cases are concerned, if a conviction is
up for the review before the SC, what is supposed to be
done here?
A: voting. Whether en banc of division.
Q: if they cannot get the required majority votes, what will
happen to that? What will be the next step?
A: it will be subjected to re-deliberations.
Q: after re-deliberations still they cannot get the required votes,
as mandated by the law, be it en banc of in division. What is
the effect of that? We are taking about conviction here; you
raise acquittal here because only judgments of conviction are
subjected to review.
A: acquittal of the accused.
JS: acquittal. So that is our procedure. We are focusing only on
criminal cases since the law, en banc on in division, requires
majority vote. If upon the deliberation they cannot get the
required majority vote, it will be subjected to another
deliberation; if after the deliberation still they cannot get the
required votes, then that will result to the acquittal of the
accused.
RULE 126
Search and Seizure
Q: what is a search warrant?
A: Section 1. Search warrant defined. — A search warrant is
an order in writing issued (by the judge) in the name of the
People of the Philippines, signed by a judge and directed to
a peace officer, commanding him to search for personal
property described therein and bring it before the court.
Q: as far as search warrant is concerned, where will you apply
it?
A: Section 2. Court where application for search warrant
shall be filed. — An application for search warrant shall be
filed with the following:
a. Any court within whose territorial jurisdiction a crime was
committed.
b. For compelling reasons stated in the application, any court
within the judicial region where the crime was committed if
the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be
enforced.
However, if the criminal action has already been filed, the
application shall only be made in the court where the criminal
action is pending.
JS: to make an acceptable answer there, you need to make a
qualification. It depends whether the case is already pending
or not because if the criminal case is already pending, where
will you file the application for search warrant?
A: you can only file in the court where the criminal case in
pending.
JS: but where there is no pending case yet, section 2 says that
you can apply for the issuance of the search warrant in the
court which has territorial jurisdiction over the place of the
commission of the crime.
Q: can it be filed not in the court which has territorial jurisdiction
over the subject of the search warrant?
A: yes, it can be filed in any court within the judicial region of
the court for compelling reasons stated in the application
as a condition sine qua non before the court can actually
receive your application for search warrant.
JS: as to what that compelling reason is, it is up to the judge to
appreciate. More often than not, the use of compelling
reasons, there might be leakage and to avoid that – they
would usually apply to an RTC which is not in Tacloban City,
and for me that may be considered as compelling reason (?)
Q: in the issuance of search warrant, the following requisites
must be present. And these requisites would be the
following:
Answer:
1. It must be issued with a probable cause
2. It must be signed by the judge
3. Issued upon under oath or the complainant and the
witnesses he may produce
4. Particularly describing the place to be searched and the
things to be seized
5. The application for search warrant must cover only one
offense.
If these requisites are absent, the warrant is null and void, and
you apply the doctrine of the Fruit of poisonous tree that any
evidence obtained in violation of a search warrant which did
not comply with the requirements set forth in Section 2,
article 3 of the 1987 Philippine Constitution
JS: you already know probable cause for the purpose of
issuance of search warrant. There is a difference between a
probable cause to the issuance of warrant arrest of arrest
and the probable cause to the issuance of search warrant.
JS: number 5 is an additional requirement not found under the
constitution which is very important. You must be very
careful with that particular requirement otherwise it might
result to the invalidity of the search warrant issued by the
court. You application must inly cover one specific offense.
So meaning to say if the search warrant is applied for
violations of 2 laws – for example for violation of RA 9165
(anti-drugs) and violation of PD 8294 as amended by RA
10591 (illegal possession of firearms) – incontestably the
search warrant did not comply with the constitutional and
procedural requirement that must only cover a specific
offense. But I would say, if the search warrant covers both
sections 5 and 11 of RA 9165 that would still be a valid
search warrant.
JS: it requires that the judge must conduct a personal
examination in the form of question and answer upon the
complainant and the witnesses he may produce. What is
your comment of the practice of some applicants to just
submit a ready sworn statement or affidavits submitted to the
court and based on these submitted affidavits and sworn
statements, the court immediately issue a search warrant?
Would it comply with that constitutional requirement?
A: No. in fact that becomes a pro-forma. And once it is pro-
forma, meaning to say these are all prepared as application
with deponent, it is null and void. Because the law requires
that the court must conduct a personal examination based on
searching questions and answer.
JS: a search warrant, unlike that of a warrant of arrest has no
life. A warrant of arrest may be served at any time, at any
year until the accused is actually arrested. What is only
required by the rules is for the officer to submit his report
within 10 days if that was implemented, served or not. But a
 search warrant has only a lifespan of only 10 days from the
issuance of the same. So if that is implemented after 10 days
from the date of issuance then definitely that would result to
invalidity as far as the search is concerned.
Q: this is always a question. Some would say that a search
warrant cannot be served in the evening; must it be served
only on day time?
A: it depends. As a general rule it must only be served in day
time. However, if it is expressly contained in the search
warrant that the thing to seized in the person or place to be
searched, then it can be served at nigh time.
JS: but it must be expressly stated in the search warrant. If the
search warrant did not mention that is should be served on
any time of the day or not, we would always include that in
the search warrant, especially if the applicants would prove
to us that the objects subject of the search warrant are in the
possession of the person to be searched or are located in
the place where the search warrant is to be served – we
have to place in our search warrant a directive that the
search warrant can also be also be served during night time.
In the absence of that particular well-written undertaking,
then the search warrant cannot be served during night time.
JS: the law says they can break open any building for the
purpose of affecting a search warrant.
Q: You know that under the Constitution, you cannot search
without a search warrant. What are the exceptions?
Answer:
1. A search incidental to lawful arrest – the search made
must be contemporaneous with the arrest, meaning it
must not be separated by time and place. Thus, if you
are arrested right there and then, the search should be
made so that if we follow that particular principle the
search may be questioned if the same was not made
contemporaneous with the arrest.
Section 13. Search incident to lawful arrest. —
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of an
offense without a search warrant.
2. Seizure of evidence in plain view – there must be prior
valid intrusion and the police officer inadvertently
discovered the evidence in the process. The seizure
evidence in plain view would not be applicable if the officer
went to that place armed with search warrant. If the officer
is armed with a search warrant, the tendency for the police
officer is look there and there and practically scrutinized
everything to the extent that it would not be part and parcel
of the so called seizure of evidence in plain view. When
you say valid intrusion, it means to say that they are not
implementing the search by virtue of a warrant.
3. There is a waiver of ones right – it requires 2 elements:
(1) the person waiving has knowledge that the right exists,
(2) after knowing that right, you gave your consent
voluntarily.
4. Stop and frisk
5. Search of moving vehicle
Q: when one is serving a search warrant, must there be
persons present in the residence?
A: yes.
Section 8. Search of house, room, or premise to be
made in presence of two witnesses. — No search of a
house, room, or any other premise shall be made except in
the presence of the lawful occupant thereof or any member
of his family or in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same locality.
JS: in fact there is crime of searching domicile without
witnesses because in the implementation of the search
warrant, it must be in the presence of the owner, lawful
occupants or member of the family, in their absence there
just 2 witnesses of sufficient age and discretion residing in
the same locality. If that is not complied with, then definitely
you can be sued for the criminal offense of searching
domicile without witnesses.
Q: what is the criminal offense committed by applicant/public
officer for a search warrant but it turned out it was without
probable cause or just cause? Is there a crime committed?
A: search warrant maliciously obtained.
Q: there are remedies usually resorted to by counsel of the
accused. You want to question to validity of the search
warrant, what are your remedies?
A: 1. motion to quash search warrant
2. motion to suppress evidence.
Q: where can you file a motion to quash search warrant?
A: it depends. If there is a pending case, it should be resolved
by the court it is pending. If there is no criminal case filed yet,
the motion must be filed in the court which issued the search
warrant. Although, if that is not yet acted by the court and
later on, a criminal case was filed then that court will have to
resolve the motion to quash the search warrant.
Section 14. Motion to quash a search warrant or to
suppress evidence; where to file. — A motion to quash a
search warrant and/or to suppress evidence obtained
thereby may be filed in and acted upon only by the court
where the action has been instituted. If no criminal action
has been instituted, the motion may be filed in and resolved
by the court that issued the search warrant. However, if such
court failed to resolve the motion and a criminal al case is
subsequent filed in another court, the motion shall be
resolved by the latter court.
Q: motion to suppress evidence, when will you file it? If you talk
about motion to suppress evidence, it should be filed in the
court where the case is pending because is presupposes
that a case is already filed in court. Until when would you file
a motion to suppress evidence?
A: It can be filed in any stage of the proceedings but before the
court has issued and order admitting the evidences of the
prosecution.
JS: meaning of motion to suppress evidence is that the court
has not yet decided to admit these evidences. Because if the
court has already issued an order admitting all these
evidences then why would the court grant you motion to
suppress? It can be filed in any stage of the proceedings but
before the court has issued and order admitting the
evidences of the prosecution. It cannot be filed after the
prosecutor has rested its case because in our law, when the
prosecution has already rested its case it means to say that
the court has already issued an order admitting the exhibits
or evidences of the prosecution. After issuance of order that
the court has admitted the evidence, your motion becomes
moot and academic.
Q: can that be subjected to a certiorari under 65 of the 1997
Rules of civil procedure? And that will happen when?
A: yes. But certiorari will only lie to question the validity of the
search warrant if said search warrant is a patent nullity.
JS: the only problem if you resort to certiorari under rule 65 is it
will not prevent to court from further proceeding with the trial
of the case unless the court issued a temporary restraining
order or a writ of preliminary injunction. Therefore petition for
certiorari under rule 65 is another remedy of you want to
question the validity of the search warrant.
Section 12. Delivery of property and inventory
thereof to court; return and proceedings thereon. —
a. The officer must forthwith deliver the property seized to the
judge who issued the warrant, together with a true
inventory thereof duly verified under oath.
b. Ten (10) days after issuance of the search warrant, the
issuing judge shall ascertain if the return has been made,
and if none, shall summon the person to whom the warrant
was issued and require him to explain why no return was
made. If the return has been made, the judge shall
ascertain whether section 11 of this Rule has been
complained with and shall require that the property seized
be delivered to him. The judge shall see to it that
subsection (a) hereof has been complied with.
c. The return on the search warrant shall be filed and kept by
the custodian of the log book on search warrants who shall
enter therein the date of the return, the result, and other
actions of the judge.
Q: after the implementation of the writ by the officers
commanded by the court to serve the warrant, what are the
obligations of the officers? These are acts that happen after
the search warrant was already served.
A: After the search has been made, there must an inventory
signed by the occupant and in fact they must be given a copy
of the inventory.

JS: These are good defenses especially if your client is sued
for violation of Act 9165.
Q: After that is done, what is the obligation of the searching
officers?
A: forthwith (immediately) return the warrant together with the
objects seized to the court which issued the search warrant.
JS: if you have to wait for a day or so, that could be a good
avenue for the defense counsel to anchor its argument in
one of the violations of the section 12 or rule 126. The
inventory must be under oath. When the seized items are
delivered immediately to the crime laboratory that would
constitute as a violation in this particular section because the
rule is clear that it must be delivered to the court which
issued the search warrant
Q: if the court finds out there was no return yet of the search
warrant issue together with the objects to the court, what is
the obligation of the court?
A: the court will issue and order commanding the applicant now
to return the search warrant, including the objects seized as
a consequence to the search conducted.
JS: in fact that should be done within 10 days after the
issuance of the search warrant because remember the life of
the search warrant is only for 10 days. The law does not say
that we have 10 days after the search has been
implemented. Within 10 days from the search warrant was
issued and the court found out that there is return yet, it must
issue an order commanding the applicant to make the
appropriate return to the court.
Q: what do you mean by “Particularly describing the place to be
searched and the things to be seized”?
A: the location of the object which has to be searched must be
specifically mentioned.
JS: you cannot just say residence of Juan dela Cruz, located at
Sagkahan Tacloabn City – that is not valid. Dapat, in the first
room in ground floor particularly in the cabinet inside that
room. Otherwise if that is what appears in the search warrant
that becomes a general warrant. In pursuant the case of
Stonehill vs. Diokno because it did not particularly describing
the place to be searched and the things to be seized.
RULE 127
Provisional Remedies in Criminal Cases
JS: These are the provisional remedies. Remember, the first
section says that the provisional remedies in civil cases are
likewise available in criminal cases. Our provisional
remedies in civil cases would be preliminary attachment,
preliminary injunction, receivership, replevin and support
pendente lite. The more common of these provisional
remedies in criminal law is actually attachment and support
pendent lite. Why? Remember you were under me in the
second semester, in cases of seduction, abduction and rape,
then a child is born out of the commission of the crime – one
of the civil liability aspects is for the accused to support the
offspring. You can do that. If there is appending criminal
case for rape, or qualifies seduction or consented abduction,
right on the same criminal case, you can file for a support
pendente lite while the case is going on. You have to
remember that as far as preliminary injunction/prohibition is
concerned, generally a court cannot be enjoined or
prohibited from the trial of the case. That is our rule.
Injunction, prohibition would not necessarily lie from
preventing a court from hearing or trying a criminal case,
except 10 instances enumerated in the book of Regalado,
under paragraph 8 in section 1, Rule 110.
JS: and these are the exceptions, this is one of my favorites.
GR: A court hearing a criminal case cannot be enjoined or
prohibited from hearing a case, so meaning to say you
cannot ask for a temporary restraining order or a writ of
preliminary injunction or prohibition to prevent a court from
hearing a criminal case, because as a general rule it is not
allowed. Exceptions:
1. To afford adequate protection to the Constitutional
rights of the accused.
2. To avoid suppression or multiplicity of suits.
3. When there is a prejudicial question which is sub-
judici(?) – so meaning to say this is an stance where
the accused raised before the court not proceed with
the hearing because there is a pending prejudicial
question. And despite of that, the court overrules or
denies the motion, you felt aggrieved – you can go
before the CA for prohibition and ask there for the
issuance of a writ or preliminary injunction or TRO.
4. If the acts of the officer are without or in excess of
authority.
5. When the prosecution is under an invalid law,
ordinance, regulation.
6. When double jeopardy is clearly apparent
7. When the court has no jurisdiction over the offense
8. When the case is one of persecution rather that
prosecution – this is a matter or evidence
9. When the charges are manifesting false and
motivated for lust for vengeance
10. When there is clearly no prima faci case against the
accused and a motion to quash was denied.
JS: So when the situation falls under these exceptions, the
court can be enjoined from proceeding and a writ of
preliminary injunction may be validly granted by the court to
prevent to court from further proceeding with the case.
JS: the reason for the general rule is that preventing the court
from hearing the case is anathema to justice. Which is
correct, why would you prevent us from hearing the case
when it is our duty to do so?
JS: attachment is being case. In fact rule 127 focuses only on
attachment. So attachment is only proper when?
A: when the civil liability is deemed instituted in the criminal
action.
Section 1. Availability of provisional remedies. — The
provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action.
JS: there can only be attachment if the civil liability in the
criminal case is deemed impliedly instituted. So that if the
civil liability is reserved, there can be no attachment,
because attachment only applies in the civil aspect of the
case. Remember Rule 111, in accordance with Article 100: a
person who is criminally liable is also civilly liable. When a
criminal case is filed, the civil case is deemed included
except, remember the 2 instances:
1. It is expressly reserved
2. Waived
3. Filed ahead.
Q: attachment is usually done for what?
A: to protect the judgment of the civil liability later. So that you
have to attach whatever property the accused have to serve
as security for judgment of the civil liability which might be
rendered by the court later.
JS: at least you can be sure that you will be paid in the civil
liability because there is attachment. But attachment is not
proper in all criminal cases. It is only proper in 4 instances.
Q: what are these instances?
A: Section 2. Attachment. — When the civil action is properly
instituted in the criminal action as provided in Rule 111, the
offended party may have the property of the accused attached
as security for the satisfaction of any judgment that may be
recovered from the accused in the following cases:
a. When the accused is about to abscond from the
Philippines;
b. When the criminal action is based on a claim for money
or property embezzled or fraudulently misapplied or
converted to the use of the accused who is a public
officer, officer of a corporation, attorney, factor, broker,
agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or
for a willful violation of duty;
c. When the accused has concealed, removed, or
disposed of his property, or is about to do so; and
d. When the accused resides outside the Philippines
JS: when can you do the attachment? It can be done in any
stage of the proceeding. In our civil procedure on preliminary
attachment – it can be done in any stage of the proceeding
before judgment
JS: but you have to remember that there are properties
excepted from attachment. Like family home.