REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
MANDALUYONG CITY
BRANCH 278

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

CRIM. CASE NO. 114762-R00-

- versus - 00
For: Concubinage.
VINCENT PACER y RALLONZA
Accused-Appellant
x--------------------------------------------x

COMMENT/OPPOSITION
(To Accused-Appellant’s Motion for Reconsideration dated 23 August
2019[.])

The Private Prosecutor, under the control and supervision of the

Honorable Public Prosecutor, by way of Comment/Opposition to the Motion
for Reconsideration dated 23 August 2019[.] (“Motion for Reconsideration”)
filed by Accused-Appellant Vincent R. Pacer (“Accused-Appellant”) and in
compliance with this Honorable Court’s Order dated 30 August 2019[.],
respectfully states:

THE MOTION FOR RECONSIDERATION IS FATALLY

DEFECTIVE BECAUSE THE ACCUSED-APPELLANT
VIOLATED RULE 15, SECTIONS 4 AND 5 OF THE RULES
OF COURT. FOLLOWING THE RULES OF COURT AND
SETTLED JURISPRUDENCE, THIS HONORABLE COURT
SHOULD TREAT THE MOTION FOR RECONSIDERATION
AS A MERE SCRAP OF PAPER.

1. At the outset, the Motion for Reconsideration should be denied

by this Honorable Court for violation of Rule 15, Section 4 and 5 of the Rules
of Court, which provides that:

“Section 4. Hearing of motion. — Except for motions which

the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by
the applicant.
 Every written motion required to be heard and the notice
of the hearing thereof shall be served in such a manner as to
ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets
the hearing on shorter notice.

Section 5. Notice of hearing. — The notice of hearing shall

be addressed to all parties concerned, and shall specify the
time and date of the hearing which must not be later than ten
(10) days after the filing of the motion.”1

2. In the case of Cabrera v. Ng,2 the Supreme Court reiterated the

rule that failure to comply with the requirements of Section 4 and 5 of Rule
15 of the Rules of Court automatically renders the motion fatally defective
and thus, should be treated by the court as a mere scrap of paper, to wit:

“Sections 4 and 5, Rule 15 of the Rules of Court provide

that:

Sec. 4. Hearing of motion. — Except for motions which the

court may act upon without prejudicing the rights of the adverse
party, every written motion shall be set for hearing by the
applicant.

Every written motion required to be heard and the notice

of the hearing thereof shall be served in such a manner as to
ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets
the hearing on shorter notice.

Sec. 5. Notice of hearing. — The notice of hearing shall be

addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days
after the filing of the motion.

The general rule is that the three-day notice requirement

in motions under Sections 4 and 5 of the Rules of Court is
mandatory. It is an integral component of procedural due
process. ‘The purpose of the three-day notice requirement,
which was established not for the benefit of the movant but
rather for the adverse party, is to avoid surprises upon the latter
and to grant it sufficient time to study the motion and to enable
it to meet the arguments interposed therein.’

1
RULES OF COURT, Rule 15, Secs. 4 and 5; emphasis and underscoring supplied.
2
G.R. No. 201601, 12 March 2014, 729 Phil. 544-552.
 ‘A motion that does not comply with the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is a worthless
piece of paper which the clerk of court has no right to receive
and which the court has no authority to act upon.’ ‘Being a fatal
defect, in cases of motions to reconsider a decision, the running
of the period to appeal is not tolled by their filing or
pendency.”3

3. Here, the Accused-Appellant blatantly violated Sections 4 and 5

of Rule 15. The Accused-Appellant served his Motion for Reconsideration
via registered mail, knowing fully well that the same will not be received by Commented [JPGA1]: confirm this.

the undersigned at least three (3) days before the hearing on 30 August 2019 Commented [Office2R1]: Yes Attorney. the MR was sent
via registered mail
[date when the MR was heard]. Thus, the undersigned was only able to
receive the Motion for Reconsideration on 30 August 2019. [date when you
received the MR]. Based on the Rules of Court and the prevailing
jurisprudence, the instant Motion for Reconsideration should be treated as a
mere scrap of paper, and should be denied outright by this Honorable Court.

II

CONTRARY TO ACCUSED-APPELLANT’S ERRONEOUS

ARGUMENTS, THE PRIVATE PROSECUTOR HAS FULL
AUTHORITY TO FILE THE COMMENT TO HIS MOTION
FOR RECONSIDERATION DATED 23 JANUARY 2019[.].

4. Even assuming, purely for the sake of the argument, that the
Motion for Reconsideration has been validly served and filed, there is still
no merit to Accused-Appellant’s argument that the undersigned Private
Prosecutor is without any authority to participate in this case.

5. Section 5, Rule 110 of the Revised Rules of Criminal Procedure

provides that once a Private Prosecutor is authorized by the Public
Prosecutor, the former can prosecute the case until the case attains finality,
thus:

"Section 5. Who must prosecute criminal actions. - All

criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control
of a public prosecutor. In case of heavy work schedule of the
public prosecutor or in the event of lack of public prosecutors,
the private prosecutor may be authorized in writing by the
Chief of the Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the approval of the
court. Once so authorized to prosecute the criminal action, the

3
Ibid; emphasis and underscoring supplied.
 private prosecutor shall continue to prosecute the case up to
end of the trial even in the absence of a public prosecutor, unless
the authority is revoked or otherwise withdrawn. x x x ."

6. In the case of Salvador vs Chua4[.] it was held that the appeal is Formatted: Font: Italic

just a continuation of the trial, thus: Formatted: Font: Italic

“An appeal throws the case open for review. Under Section
11, Rule 124 of the Rules of Court, the Court of Appeals may
reverse, affirm or modify the judgment. An appeal in a criminal
case opens the entire case for review on any question, including
one not raised by the parties.[.]” Commented [JPGA3]: Find a case which states that the
appeal is just a continuation of the case. Cite and quote it
here.
7. Here, the trial of the Accused-Appellant has not yet attained Formatted: Font:
finality. In fact, the Accused-Appellant’s Motion for Reconsideration for this
Honorable Court’s Order affirming the conviction of the Accused-Appellant
is still pending resolution. Clearly, the authority of the private prosecutor to
prosecute the case has not yet ceased.

8. It is also important to note that the authority of the Private

Prosecutor to prosecute the instant case, under the direct control and
supervision of the Public Prosecutor has not been revoked.

9. Likewise, jurisprudence continue to recognize and uphold the

right of the private prosecutor to prosecute, even if there exists no CIVIL
liability. In the case of Lim Tek Goan vs Hon. Nicasio Yatco, 5 the Supreme
Court ruled that:

“Considering the foregoing observations, it is apparent

that the ruling of respondent judge that in cases like the one
under consideration which do not involve any civil liability an
offended party can only appear upon tolerance on the part of the
court is not well taken it being contrary to the law and
precedents obtaining in this jurisdiction. In this respect, the law
makes no distinction between cases that are public in nature and
those that can only be prosecuted at the instance of the offended
party. In either case the law gives to the offended party the
right to intervene, personally or by counsel, and he is deprived
of such right only when he waives the civil action or reserves
his right to institute one. Such is not the situation in the
present case. The case at bar involves a public crime and the
private prosecution has asserted its right to intervene in the
proceedings. The respondent judge, therefore, erred in

4
G.R. No. 212865, 15 July 2015 Formatted: Font: Not Bold
5
G.R. No. 6286, 29 December 1953
 considering the appearance of counsel merely as a matter of
tolerance”

7. This was reiterated in a more recent case of LEE PUE LIONG A.K.A.
PAUL LEE, Petitioner, v. CHUA PUE CHIN LEE,6 where the Supreme
Court ruled that:

“Even assuming that no civil liability was alleged or proved in the

perjury case being tried in the MeTC, this Court declared in the early
case of Lim Tek Goan v. Yatco cited by both MeTC and CA, that
whether public or private crimes are involved, it is erroneous for
the trial court to consider the intervention of the offended party by
counsel as merely a matter of tolerance. Thus, where the private
prosecution has asserted its right to intervene in the proceedings,
that right must be respected”. Commented [JPGA4]: I don’t think these arguments are
applicable. Try to argue that an appeal in a criminal case
opens the entire case for the review of the appellate court.
Thus, even if the Private Complainant did not appeal the
civil aspect, she is still entitled to be heard and to participate
10. 10. Lastly, the Accused-Appellant has confusingly invoked the in the appeal. Find cases and cite.

limitation of the private prosecutor to prosecute cases on appeal. However,

it is notable to consider, that its application, as cited in the jurisprudence
expressly mentioned in the motion, is limited to those filed before the Court
of Appeals and the Supreme Court which is significantly distinct from the
factual circumstances of this case.

11. In fact, the case cited by the defendant, Anlud Metal Recycling
Corporation v. Joaquin Ang, is not applicable in this case. In that case the
private prosecutor is appealing the criminal aspect before the Court of
Appeals. In this case, the present stage of the appeal is still in the Regional
Trial Court. Thus, the limitation that the State should be represented by the
Office of the Solicitor General does not apply.

III

IN ANY CASE AND AS CORRECTLY HELD BY THIS

HONORABLE COURT, THE FACT THAT THE PLEADINGS
FILED BY THE PRIVATE PROSECUTOR ALREADY BEAR
THE CONFORMITY OF THE PUBLIC PROSECUTOR
ALREADY CURES WHATEVER PERCEIVED DEFECT THE
SAME MIGHT HAVE.

12. As correctly held by this Honorable Court in its Omnibus

Resolution dated 5 August 2019, the fact that the Public Prosecutor has given
his conformity to the pleadings filed by the Private Prosecutor, the said
pleadings are considered as filed by the Public Prosecutor himself. Commented [JPGA5]: Check the Omnibus Order if this is
the import of the decision in Page 2. If yes, argue within this
line.
6
G.R. No. 181658, 7 August 2013
 13. [Jurisprudence supporting the argument]

14. [Point out that in this case, the specific pleadings bearing the
conformity of the Public Prosecutor]

15. [Argue that the pleadings are filed by the Public Prosecutor
because it already bears his conformity/signature.]

16. [Ultimately, argue that everything was done under the direct
control and supervision of the Public Prosecutor, thus, there can be no
prejudice to any one.]

PRAYER

WHEREFORE, it is respectfully prayed that this Honorable Court

DENY the Motion for Reconsideration dated 23 August 2019 for lack of merit
and for violation of Rule 15, Sections 4 and 5 of the Rules of Court.

Other reliefs as may be deemed just and equitable under the premises
are likewise prayed for.

City of Manila for Mandaluyong City, [.] September 2019.

SIGNATURE PAGE.

With my conformity:

[Name of Public Prosecutor]

Public Prosecutor
Regional Trial Court
Mandaluyong City, Br. 278

Copy furnished:

[Counsel for the Accused-Appellant]

[Office address]