Separate Opinions
AQUINO, J., concurring:chanrob1es virtual 1aw library
Judge Oscar Leviste’s decision dated March 3, 1980 was promulgated on the following day, March 4, in the absence of accused’s counsel, Antonio Bisnar. The accused (a registered voter who studied at the Elizalde Academy) refused to sign on the original copy of the decision as proof that he received a copy of the decision.
It is stated in the handwritten minutes of the incident that "when this case was called for promulgation of decision, the court interpreter read the whole decision and after which the dispositive part of the decision was translated to the accused. The Court sentences the accused (to) 12 years to 17 years. Later, the Court discovered that Atty. Bisnar, counsel de oficio for the accused, was not present in court. The Court appointed Atty. Jose Brotario as counsel de oficio for the purpose of promulgation. The dispositive portion of the decision was read to the accused."cralaw virtua1aw library
The said minutes were signed by the court interpreter. The deputy clerk of court executed a certification as to the promulgation and the refusal of the accused to affix his signature on the original copy.chanrobles law library
A few hours later on that same day, March 4, 1980, Judge Leviste issued an order cancelling the promulgation (1) due to the absence of Bisnar, the regular counsel de oficio, (2) the refusal of accused to sign as proof that he received a copy of the decision, (3) the imposition of the wrong penalty and (4) the fact "that the decision has not been filed."
In fact, the said decision is in the record but it contains numerous handwritten corrections made by Judge Leviste. It was retyped. The retyped decision, imposing reclusion perpetua, dated March 5, 1980, and the original decision of March 3, 1980 (with corrections) were both refiled in court at 4:30 p.m. on March 5, 1980.
Later, or on April 11, 1980, there was an oral motion to quash the second promulgation. It was denied by Judge Leviste in his order of June 9, 1980.
The corrected decision of March 5, 1980 was promulgated on June 13, 1980. The accused and his counsel signed the original copy of the said decision. The clerk of court certified to the promulgation on June 13, 1980. This was also signed by the accused (pp. 126-7, Record).
Written notices of the decision were sent to the fiscal, the warden and Bisnar on June 16, 1980. Bisnar filed his notice of appeal to the Court of Appeals.
The minutes of the proceeding on June 13, 1980 show that Bisnar objected to the promulgation of the corrected decision and insisted that the promulgation of the first decision was valid.
Judge Leviste had the power and jurisdiction to correct his decision of March 3, 1980 which was not yet officially filed. He corrected it on the same day and filed the corrected copy on March 5, 1980 together with the original decision of March 3, 1980.
"A judgment of conviction may be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to appeal." (Sec. 7, Rule 120, Rules of Court.)
The accused or his counsel should expressly inform the court that he does not want to appeal or is going to start serving his sentence. In the absence of such manifestation, the judge can change his decision within the reglementary fifteen-day period. It is not right to conjecture from the silence of the accused-detainee in the absence of his counsel that he started to serve his sentence. (People v. Español, G.R. No. 57597-99, June 29, 1982, 114 SCRA 911.)chanrobles virtual lawlibrary
In this case, counsel de oficio’s absence during the first promulgation rendered it uncertain whether or not the accused was going to appeal. The fact that he was a detention prisoner does not justify the conjecture that he did not appeal and that he had started the service of his sentence on March 4, 1980.
MAKASIAR, J., dissenting:chanrob1es virtual 1aw library
Appellant herein assigns two errors, one of which is the following:chanrob1es virtual 1aw library
I. The Court erred in motu proprio canceling the promulgation of decision on March 4, 1980.
I dissent from the resolution of the said assigned error.
On March 4, 1980, the trial court promulgated its decision convicting herein appellant of the crime of parricide and sentencing him to an indeterminate period of imprisonment of 12 years minimum to 17 years maximum. Thereafter, on the same date, the same court issued the following order:jgc:chanrobles.com.ph
"After promulgation of this case, the court motu proprio cancels the promulgation upon noting that the regular counsel de oficio, Atty. Antonio Bisnar was not around at the time and the accused refused to sign receipt of a copy of the decision and upon noting that there was a typographical error in the decision consisting of the wrong penalty and the court noting further that the decision has not been filed.
"Notifying accused and counsel of the new date of promulgation which is hereby set for March 20, 1980."cralaw virtua1aw library
After several subsequent resetting of the promulgation date, on June 13, 1980, the lower court promulgated a revised decision maintaining the conviction, but sentencing appellant to suffer the greater penalty of reclusion perpetua and to indemnify the heirs of the deceased.
The majority opinion sustains this second promulgation. That is double jeopardy.
The promulgation of March 4, 1980 was a valid promulgation. The reasons advanced by the trial court for its cancellation has no basis in law and in fact. The order of cancellation was issued in abuse of discretion, which this Court should not countenance.chanrobles lawlibrary : rednad
The discrepancy in the penalty imposed under the first and under the second promulgation can hardly be considered a typographical error.
That the decision promulgated on March 4, 1980 had not as yet been filed, is not by itself a ground for withdrawing or canceling the first promulgation, which was a valid and effective promulgation. Even an oral promulgation of an unwritten decision is valid (Cinco v. Cea, 96 Phil. 131; Catilo v. Abaya, 94 Phil. 1014).
The promulgation of March 4, 1980 complies with the requirements of Section 6, Rule 120 of the Rules of Court, to wit:jgc:chanrobles.com.ph
"The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and any judge of the court in which it is rendered. The defendant must be personally present if the conviction is for a grave offense; if for a light offense the judgment may be pronounced in the presence of his attorney or representative. And when the judge is absent or outside of the province or city, his presence is not necessary and the judgment may be promulgated or read to the defendant by the clerk of court.
"If the defendant is confined or detained in another province or city, the judgment of conviction may be promulgated by the judge of the Court of First Instance having jurisdiction over the place of confinement or detention upon the request of the court that rendered the judgment. The court promulgating the judgment shall have the authority to accept the notice of appeal and to approve the bond."cralaw virtua1aw library
Clearly, it is not necessary that defendant’s counsel be present at the time of promulgation of the judgment. Where the judgment is one of conviction for a grave offense, all that is required is that the defendant be personally present in court at the time of promulgation. Where the judgment is one of acquittal, the presence of the defendant during promulgation is not at all required in any case (Cinco v. Cea, L-7075, November 18, 1954, 96 Phil. 131). Here, all that is required is that a copy of the judgment be served on said acquitted defendant (Ibid.). This notwithstanding, it is noted from the records of this case that a counsel de oficio for the purpose of promulgation (Atty. Jose Brotarlo) was in fact afforded the defendant prior to the promulgation of judgment conducted on March 4, 1980 (p. 108, CFI rec.).
Finally, there is no hint from the above-cited provision that the defendant’s signature evidencing receipt of a copy of the decision is necessary to effect a valid promulgation of judgment. In the case at Talabon v. Iloilo Provincial Warden (44 No. 11 O.G. 4326), this Court upheld the validity of a promulgation of a verbal judgment of conviction. Failure on the part of the court to comply with Section 2, Rule 120 of the Rules of Court and the Constitution did not divest the lower court of its jurisdiction acquired over the offense and the petitioner (Ibid.). By inference, the lack of defendant’s signature evidencing receipt of a written copy of a decision does not render invalid and inefficacious the promulgation thereof.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Concededly, under Section 7 of the same Rule, "a judgment of conviction may be modified or set aside by the court rendering it before judgment has become final or appeal has been perfected." But such "discretion" afforded a judge means sound discretion exercised, not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the judge’s reason and conscience to just result (12A Words and Phrases 344). Evidently however, the order of cancellation issued by the trial court above does not conjure with the circumstances of and the law pertinent to the case as above described. The discretion granted by the Rules, having been exercised to an end not justified by the evidence, the order of cancellation being clearly against the logic and effect of the facts as are found, this Court should reverse the same (1 Words and Phrases 341). The order of cancellation is null and void for having transpired from an improvident exercise of discretion.
It is noted that the discretion provided the court under Section 7 of Rule 120 cannot be exercised in case of a valid promulgation of a judgment of acquittal (Catilo v. Abaya, No. L-6921, May 14, 1954; 94 Phil. 1014). The promulgation therein cannot be cancelled even on the ground of misrepresentation of facts and misappreciation of evidence. Here, the first jeopardy is terminated, and a subsequent modification of the said judgment would result in double jeopardy.
Cabarroguis v. Judge San Diego (G.R. No. L-19517, November 30, 1962, 116 Phil. 1184) does not apply to the present case to validate the second promulgation of June 13, 1980. In Cabarroguis, the respondent judge dictated in open court her order of acquittal even before the direct testimony of the lone witness for the prosecution could be completed. Upon prompt oral motion for reconsideration by the prosecution, the court "withdrew" its order. Thereupon, direct examination resumed. Counsel for the defendant afterwards cross examined the witness. During the day’s proceedings, no objection thereto was heard from the defendant’s counsel. Thus, as ruled by this Court, "petitioner’s failure to object, at that time, to the taking of said evidence for the prosecution, and the cross examination of complainant by counsel for the petitioner amounted therefore, to a waiver of her constitutional right against double jeopardy (People v. Casiano, L-15309, February 16, 1961; 14 Am. Jur. 958).
Petitioner did not invoke such right until about a week later, or on March 7, 1962, when the hearing resumed for the reception of the evidence for the defense. The objection then made by her came too late in view of her aforementioned waiver" (Ibid.).
In the present case, however, the promulgation of judgment on March 4, 1980 was conducted after both the prosecution and the defense had rested their case. Defendant, assisted by a counsel de oficio (although not his regular counsel de oficio), was present during the promulgation. Thereafter, said defendant promptly returned to his cell. Upon receipt of the court’s order canceling said promulgation, Atty. Bisnar, defendant’s regular counsel de oficio, promptly and vehemently objected to the same. He reiterated his objections to said order of cancellation and second promulgation on June 13, 1980. Clearly, having promptly invoked his right against double jeopardy, defendant should benefit therefrom.chanrobles virtual lawlibrary
Perforce, the promulgation of judgment on March 4, 1980 stands undisturbed by the trial court’s subsequent cancellation thereof. Fifteen days after said date, and no appeal having been taken by the defendant, the judgment thereby promulgated became final.
Some discussion was focused on whether or not the defendant, by returning to his detention cell after promulgation of judgment on March 4, 1980, commenced to serve the sentence under said promulgation. Consonant with OUR basic criminal law doctrine that doubts should be interpreted in favor of the accused, the equivocal gesture of the accused should be interpreted as an act to commence the service of his sentence. The penalty imposed under the promulgation of March 4, 1980 was clearly lighter than what is prescribed by the law. To immediately submit to it, doubtless, would favor the accused.
This dissent notes the oral motion to quash the second promulgation of Atty. Antonio Bisnar, regular counsel de oficio of the accused, on April 11, 1980 (p. 121, CFI rec.), and his subsequent objection to said second promulgation on June 13, 1980 (p. 129, CFI rec.). These facts support the position that the accused returned to his cell after the promulgation of March 4, 1980 with the intention to commence the service of his sentence.
Nonetheless, the incontrovertible fact under the circumstances is that 15 days after the promulgation of March 4, 1980, with the defendant not having taken an appeal from the decision promulgated, the same became final. Thereafter, the trial court lost its control and jurisdiction over the case, and the trial judge could no longer modify nor set aside the judgment rendered therein (U.S. v. Vayson [1914], 27 Phil. 447). The subsequent promulgation of a revised decision on June 13, 1980, three months after the first promulgation, is null and void.chanrobles law library : red
By sustaining the second promulgation, this Court countenances a second jeopardy cutting deep into the constitutional protection against double jeopardy. There is no question that a first jeopardy attached. The same was terminated 15 days after judgment thereon was promulgated on March 4, 1980. Any substantial modification by increasing the penalty decreed in such decision after March 19, 1980 would amount to double jeopardy (Gregorio v. Director of Prisons, 43 Phil. 650).
Teehankee, J., dissents.
ESCOLIN, J., dissenting:chanrob1es virtual 1aw library
I dissent. The records disclose that after the promulgation of the first decision on March 4, 1980, petitioner did not manifest his desire to appeal and was therefore committed to jail; that the 15-day period to appeal lapsed without petitioner having perfected his appeal; and that before the promulgation of the new decision on June 30, 1980, he vehemently objected to the cancellation of the March 4, 1980 promulgation as well as the promulgation of the new judgment. Surely, any doubt as to the conclusion to be drawn from this factual setting should be resolved in favor of the petitioner’s posture that he immediately commenced service of sentence after the promulgation of the first decision, and that therefore the same became final in accordance with the rule that a judgment in a criminal case becomes final when the sentence has been partially served. [Section 7, Rule 120 of the Rules of Court].