MARCELINO G. RIVERA, JR., PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES AND HON. MARCELINO F. BAUTISTA, JR., PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH III, BAGUIO CITY…

The instant petition seeks to annul and set aside the Order dated
March 28, 1990 issued by respondent Judge in Criminal Case No. 6201-R. The said Order sets aside the verbal order
earlier dictated in open court dismissing the case for failure to adduce
evidence on the part of the prosecution.

The following pertinent facts are not disputed:

On December 16, 1988, petitioner Marcelino G. Rivera, Jr. was
arrested and detained for he allegedly was about to transport marijuana to
Manila. Consequently, on December 20,
1988 a case for violation of Section 4, Art. II of RA 6425 was filed against
him with the Regional Trial Court of Baguio City, Branch III presided over by
respondent Judge Marcelino F. Bautista.

Petitioner was arraigned on February 20, 1989. He pleaded not guilty to the crime charged.

On April 5, 1989, the first witness for the prosecution Cpl.
Victorio Afalla partially testified on direct examination and reserved the
right to identify the marijuana specimen allegedly confiscated from the
petitioner. The hearing was thus re-set
to May 3, 1989 and June 6, 1989. But
due to the absence of any prosecution witness despite notice and the
non-availability of the allegedly confiscated marijuana specimen, the hearings
set for May 3, 1989 and June 6, 1989 were postponed to June 8, 1989.

On June 8, 1989, for the same reasons, the hearing was re-set to
February 27, 1990.

On February 27, 1990, Capt. Lina Sarmiento, the Forensic Chemist
who will present the marijuana specimen, despite notice failed to appear. Petitioner through counsel then moved for
the dismissal of the case. This was
denied by respondent Judge and the hearing was re-set to March 28, 1990.

On March 28, 1990, when the case was called at about 8:30 a.m. Capt. Lina Sarmiento despite
notice, was not around thereby necessitating a second call. When the case was called for the second time
at around 9:00 a.m. Capt. Sarmiento was still not around. Hence, Atty. Tomas Gorospe, in behalf of
petitioner orally moved for the dismissal of the case invoking the right to
speedy trial as the petitioner stands
confined and that the Government failed to prosecute or adduce evidence due to
the non-appearance of a vital prosecution witness.

The respondent Judge verbally granted the motion and ordered the
immediate release of the accused.

While the subsequent calendared cases set for that day was in progress, and in less than an hour after
pronouncement of the verbal order of dismissal, Capt. Lina Sarmiento arrived
direct from Quezon City. Upon a
satisfactory explanation, the respondent Judge issued his now assailed Order
setting aside his previous verbal order of dismissal and re-scheduling Crim.
Case No. 6201-R for continuation of trial.

Alleging that the verbal order of dismissal made in open court
amounted to the acquittal of petitioner and which order is immediately final
and executory, the respondent Judge could no longer set it aside without
violating petitioner’s constitutional right against double jeopardy.

The petition should be denied. The earlier verbal order of dismissal was not final, in fact, was
ineffective, because it left something to be done in line with the decision of
this Court in Cabarroguis vs. San Diego, L-19517, Nov. 30, 1962, 6 SCRA
866. This Court in said case ruled:

“Petitioner’s pretense is untenable. The verbal order of dismissal of said case was withdrawn or set
aside, as soon as it was dictated by respondent and before it could be reduced
to writing and signed by her. As a
matter of fact, it was never put in writing. Much less was it ever signed by respondent. For this reason, respondent contended that said order of
dismissal was incomplete and did not have the effect of acquitting the accused
before it was withdrawn. Indeed,
pursuant to section 2 of Rule 116
of the Rules of Court, ‘the judgment’ – and the order of dismissal in question had,
if completed, such effect – ‘must be written x x x personally and
directly prepared by the judge, and signed by him x x x.’ The cases cited by
herein petitioner involved written orders of dismissal, which were signed by
the corresponding judges. Hence, said
cases are not controlling in the one at bar.”

This doctrine was re-echoed in the case of Abay Sr. vs. Garcia,
No. 66132, June 27, 1988, 162 SCRA 665 where this Court ruled –

“Where there is a valid information and the accused has been
arraigned, an order of dismissal issued by the court, motu proprio, in
the course of a trial of a criminal case, whether based on the merits or for
failure of prosecution witnesses to appear, has the effect of a judgment of
acquittal and double jeopardy attaches. The order is also immediately executory. However, this order of dismissal must be written in the official
language, personally and directly prepared by the judge and signed by him
conformably with the provisions of Rule 120, section 2 of the Rules of
Court. In the instant case, it is very
clear that the order was merely dictated in open court by the trial judge. There is no showing that this verbal order
of dismissal was ever reduced to writing and duly signed by him. Thus, it did not yet attain the effect of a
judgment of acquittal, so that it was still within the powers of the judge to
set it aside and enter another order, now in writing and duly signed by him,
reinstating the case.” (162 SCRA, pp.
667-668)

ACCORDINGLY, the petition is DENIED. The case is remanded to the court of origin
for further proceedings.

Melencio-Herrera, (Chairman), Padilla and Regalado, JJ., concur.

Sarmiento, J., on leave.