ANTONIO Y. PINZON, PETITIONER, VS. HON. SANTIAGO M. ARENAS, IN HIS CAPACITY AS THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 217, AND THE PEOPLE OF THE PHIL…
SORONGON, E.D., J.
“Wherefore, Premises Considered, the Omnibus Motion of the Accused To Quash the criminal informations docketed as Criminal Cases Nos. Q-09-157791 to 846 is hereby denied for lack of merit.
But the Motion to Suspend the Criminal Proceedings By Reason of Prejudicial Question also filed by the accused is hereby granted after having found that the elements of prejudicial question are herein present.
Accordingly, the proceedings in the fifty five counts of criminal cases of estafa under Article 315, Paragraph 1(b) of the Revised Penal Code against the accused are hereby suspended until the termination of Civil Case No. SEC-MC06- 010 before Regional Trial Court Branch 211 at Mandaluyong City entitled: “Manuel S. Asencio, III versus Antonio Y. Pinzon.”
SO ORDERED.”
The undisputed facts are as follows:
Petitioner Antonio Y. Pinzon (petitioner) and his co-accused Ethel Pinzon were charged with fifty-five (55) counts of Estafa penalized under Article 315 par. 1(b) of the Revised Penal Code upon the complaint of Manuel S.C. Asencio III. On December 20, 2005, petitioner was duly arraigned. However, upon reinvestigation, the Office of the City Prosecutor (OCP) of Quezon City found no probable cause to indict petitioner for Estafa per Resolution dated March 8, 2006. Consequently, with the tacit conformity of petitioner and his co-accused the fifty-five (55) informations were accordingly withdrawn per Order of Judge Bayani V. Vargas dated August 29, 2006[2]. The pertinent portion of the Order reads:
“WHEREFORE, with both accused giving their express conformity to the withdrawal of the Information, the same is hereby withdrawn.
The Office of the Clerk of Court, Quezon City is hereby ordered to release the cash bond posted by Ethel Pinzon for her provisional liberty under O.R. No. 0995963 dated July 8, 2005 in the amount of P16,000.00. likewise, finding the Motion to Lift Hold-Departure Order filed by accused Antonio Y. Pinzon, to be meritorious, the same is hereby granted. the hold departure order previously issued against Antonio Pinzon is hereby ordered cancelled (sic) and revoked.
SO ORDERED.“[3]
Private complainant Manuel S.C. Asencio III then filed a Petition for Review before the Department of Justice (DOJ) impugning the March 8, 2006 Resolution of the OCP. On January 15, 2009, the DOJ reversed the said resolution and found probable cause to indict petitioner for Estafa. Thus, the reinstatement of the previously withdrawn fifty-five (55) informations[4]. Aggrieved, petitioner moved for a reconsideration of the DOJ’s resolution claiming that the petition for review was filed out of time and lacks merit. Further, he filed a Motion to Suspend Proceedings dated February 10, 2009 before the OCP pending resolution of his Motion for Reconsideration before the DOJ.
But on March 18, 2009, pursuant to the DOJ’s directive to reinstate the informations, the OCP refiled the fifty-five (55) informations against petitioner docketed as Criminal Case Nos. Q-09-157791 to 846, respectively, all raffled with the respondent court.
Undaunted, petitioner assailed the refiling of the informations via an Omnibus Urgent Motion (To Quash Information, To Suspend Issuance of Warrants of Arrest and/or Quash Warrants of Arrest and For Reduction of Bail) dated March 20, 2009, invoking Section 8, Rule 117 of the Revised Rules of Criminal Procedure and the case of People v. Lacson[5].
By Order[6] dated November 5, 2009, the respondent court denied petitioner’s Omnibus Motion for want of merit. Petitioner’s Motion for Reconsideration was likewise denied in the Order[7] dated July 4, 2011 for being a rehash of the arguments already resolved in the assailed Order.
Hence, the resort to this petition alleging that:
THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHICH NECESSITATES THE ISSUANCE OF THE WRIT OF CERTIORARI, PROHIBITION AND MANDAMUS, IN THAT:
- THE LOWER COURT GRAVELY ABUSED ITS DISCRETION IN DENYING PETITIONER’S MOTION TO QUASH THE CRIMINAL INFORMATION DESPITE CLEAR AND UNMISTAKABLE LAPSE OF THE TWO-YEAR PERIOD FROM THE TIME OF ITS DISMISSAL UNTIL THE TIME OF RE-FILING IN VIOLATION OF SECTION 8, RULE 117 OF THE RULES OF CRIMINAL PROCEDURE, AS AMENDED AND ESTABLISHED JURISPRUDENCE.
- THE LOWER COURT GRAVELY ABUSED ITS DISCRETION IN REFUSING TO DISMISS THE CRIMINAL INFORMATIONS BY CITING REASONS NOT EVEN SANCTIONED BY LAW, THE RULES OF COURT AND ESTABLISHED JURISPRUDENCE.
- THE LOWER COURT SERIOUS AND GRAVELY ERRED WHICH OUSTED ITS JURISDICTION IN RULING THAT SECTION 8, RULE 117 DOES NOT APPLY WHILE THE CASE IS PENDING WITH THE DEPARTMENT OF JUSTICE ON PETITION FOR REVIEW AND DESPITE THE CLEAR DISMISSAL AND WITHDRAWAL OF THE PREVIOUS CRIMINAL CHARGES BY THE REGIONAL TRIAL COURT OF QUEZON CITY BRANCH 219 ON 26 AUGUST 2008.
Petitioner claims that the respondent court committed grave abuse of discretion in denying the Omnibus Motion notwithstanding that the filing of the fifty-five (55) informations was already barred by the two-year prescriptive period under Section 8, Rule 117 of the Revised Rules of Criminal Procedure.
There is no merit in the petition.
The records clearly disclose that the fifty-five (55) informations for estafa were ordered withdrawn[8] by the respondent court conformably with the March 8, 2006 Resolution of the OCP finding no probable cause to indict the petitioner of the crimes charged. However, upon review by the DOJ of the March 8, 2006 Resolution, it found sufficient ground to indict herein petitioner of the crime of Estafa under Article 315 par. 1(b) of the Revised Penal Code. Hence, by order of the DOJ all the fifty-five (55) informations were refiled in court.
It is clear from the records that the dismissal of the case was not a termination on the merits. Instead, it is interpreted to mean as a “dismissal without prejudice” pending the resolution of the private respondent’s review before the DOJ of the no probable cause finding of the OCP. Apparently, that was the reason why the respondent court asked the consent of the accused for the withdrawal of the informations. Clearly, there was a tacit agreement between the prosecution and the defense, as shown by the latter’s express conformity to momentarily defer the proceedings while awaiting the result of the petition for review filed by the private complainant before the DOJ. Hence, the withdrawal of the informations is not a bar to the prosecution of the same offense or to the refiling of the same informations. It therefore goes without saying that the action of the respondent court in granting the revival or refiling of the informations is not tainted with grave abuse of discretion tantamount to lack of jurisdiction precisely because petitioner himself had categorically consented to the “dismissal” which stays provisionally. Thus, in Pendatun vs. Aragon[9] the Supreme Court has this observation, viz:
“Thus, it seems, that even in a situation where provisional dismissal should really be final, when the accused consents to the dismissal precisely as provisional, then it stays provisional because his consent is equivalent to a waiver of his constitutional right.”
In another case of People vs. Hewald, et al.,[10] the Supreme Court likewise held that:
“Where the case was dismissed “provisionally” with the consent of the accused, he cannot invoke double jeopardy in another prosecution therefor.”
Likewise, the case of Lauchengco vs. Alejandro, etc. et al.[11], has this to say,
“In such a case, where the information is sufficient in form and substance and the accused is aware that such dismissal is not final in nature, the case may be revived without the need of filing another information.”
At any rate, even without the foregoing rationalizations, this petition nonetheless is destined to be dismissed for the reasons We will hereunder discuss.
At bar, the withdrawal of the information does not fall within the ambit of Section 8, Rule 117 of the Revised Rules of Criminal Procedure which pertains to provisional dismissal. The rules tell Us that a motion to withdraw information is far different from the legal consequences of dismissals predicated on motion to dismiss.
The case of Torres, Jr. vs. Torres-Aguinaldo[12] is applicable by analogy in the present case, thus:
“A motion to withdraw information differs from a motion to dismiss. While both put an end to an action filed in court, their legal effect varies. The order granting the withdrawal of the information attains finality after fifteen (15) days from receipt thereof, without prejudice to the re-filing of the information upon reinvestigation.
On the other hand, the order granting a motion to dismiss becomes final fifteen (15) days after receipt thereof, with prejudice to the re-filing of the same case once such order achieves finality. In Bañares II v. Balising, a motion to dismiss was filed thus putting into place the time-bar rule on provisional dismissal.
In the case at bar, a motion to withdraw information was filed and not a motion to dismiss. Hence, Bañares II v. Balising would not apply. Unlike a motion to dismiss, a motion to withdraw information is not time-barred and does not fall within the ambit of Section 8, Rule 117 of the Revised Rules of Criminal Procedure which provides that the law on provisional dismissal becomes operative once the judge dismisses, with the express consent of the accused and with notice to the offended party: (a) a case involving a penalty of imprisonment not exceeding six (6) years or a fine of any amount, or both, where such provisional dismissal shall become permanent one (1) year after issuance of the order without the case having been revived; or (b) a case involving a penalty of imprisonment of more than six (6) years, where such provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.
There is provisional dismissal when a motion filed expressly for that purpose complies with the following requisites, viz.: (1) It must be with the express consent of the accused; and (2) There must be notice to the offended party. Section 8, Rule 117 contemplates the filing of a motion to dismiss, and not a motion to withdraw information. Thus, the law on provisional dismissal does not apply in the present case.” (Emphasis supplied)
The foregoing doctrine is reiterated in the case of Carandang vs. Ragasa:[13]
“Petitioner further contends that the CA should not have disturbed the MeTC’s order granting the city prosecutor’s motion to withdraw the perjury case since it had already become final.
The point is whether the perjury case can be re-filed despite the trial court’s final order granting the city prosecutor’s motion to withdraw the Information for perjury.
We answer in the affirmative.
In Torres v. Aguinaldo, we had the opportunity to distinguish between the effects of the orders granting a motion to withdraw an Information and a motion to dismiss:
A motion to withdraw differs from a motion to dismiss. While both put an end to an action filed in court, their legal effect varies. The order granting the withdrawal of the information attains finality after the fifteen (15) days from receipt thereof, without prejudice to the re-filing of the information upon reinvestigation. On the other hand, the order granting a motion to dismiss becomes final fifteen (15) days after receipt thereof, with prejudice to the re-filing of the same case once such order achieves finality. (emphasis supplied)
According to Torres, an order granting a motion to withdraw an Information will not bar its subsequent re-filing. The dismissal of the case on this basis is without prejudice to its re-filing.”
From the foregoing, the time-bar rule on provisional dismissal is not applicable in the factual milieu of the present case. Accordingly, We cannot perceive how the respondent court could have acted with grave abuse of discretion in denying petitioner’s Urgent Motion to Quash the Information.
Petitioner can neither find solace in the Lacson case, it being inapplicable since it is not factually on all fours with the present case. The Office of the Solicitor General (OSG) is correct on this matter. As the OSG ably argued, there are marked dissimilarities between the factual backdrop in the Lacson case and the material facts in the present controversy. First, in the Lacson case, the accused filed a judicial determination of probable cause and for examination of prosecution witnesses while in this case, there is no such issue presented; second, the desistance and recantation of the prosecution witnesses in the Lacson case led to the provisional dismissal of the said case for want of probable cause. In here, the withdrawal was brought about by the resolution of the OCP finding no probable cause to indict petitioner of the charges, however, it was subsequently reversed and set aside by the DOJ prompting the refiling of the subject criminal informations; third, the Supreme Court in the Lacson case held that “the provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent as he himself moved for said provisional dismissal when he filed his motion for judicial determination of probable cause and for examination of witnesses,”[14] whereas, here, petitioner did no such thing but it was the private complainant who filed a petition for review before the DOJ assailing the resolution of the OCP regarding withdrawal of information.
That being settled, it cannot be gainsaid that the refiling of the criminal cases against the petitioner was not barred by the two-year prescriptive period on provisional dismissal under Section 8, Rule 117 of the Revised Rules of Criminal Procedure. Hence, We find no error much less grave abuse of discretion on the part of the respondent court when it denied petitioner’s Urgent Motion to Quash the Information.
Clearly, petitioner’s resort to this petition for mandamus urging Us to compel the respondent court to act in a specific way, that is , by dismissing the criminal cases filed against him, in effect is a curtailment of the respondent court’s exercise of discretion.
To recapitulate, when petitioner explicitly gave his consent to the temporary termination of the case via withdrawal of the informations, he cannot invoke double jeopardy in the prosecution of another similar case against him or even the refiling of the same information previously withdrawn due to the finding of the OCP of no probable cause but which finding was subsequently reversed by the DOJ. Furthermore, a motion to withdraw the information and motion to dismiss or a provisional dismissal are two different legal concepts which have dissimilar legal consequences and should not be confused one from the other. The proscription under Section 8 of Rule 117 heavily relied upon by petitioner finds no application in the present case, hence, the denial by the trial court of petitioner’s motion is in order.
WHEREFORE, the instant petition is DENIED for lack of merit.
SO ORDERED.
Carandang (Chairperson) and Gonzales-Sison, JJ., concur.
[1] Rollo, pp. 28-35
[2] Order dated August 29, 2006, Rollo, pp. 151-152
[3] Id.
[4] Rollo, pp. 153-157
[5] 400 SCRA 267
[6] Supra at note 1
[7] Rollo, p.36
[8] Order dated August 29, 2006, Supra at note 2
[9] 93, Phil. 798, cited in the succeeding case of Co Te Hue vs. Encarnacion, 94 Phil. 258, People vs. Togle, L-13709, January 30, 1959, People vs Hinaut, L-11315, March 18, 1959, Andres vs. Judge Cacdac, 113 SCRA 216
[10] 105 Phil. 303
[11] L-49034, January 31, 1979
[12] G.R. No. 164268, June 28, 2005
[13] G.R. No. 161829, April 13, 2007
[14] People vs. Lacson, G.R. No. 149453, April 1, 2003