LEOPOLDO SALCEDO, PETITIONER, VS. HONORABLE JUDGE FILEMON H. MENDOZA AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review on certiorari with preliminary
injunction of the order of respondent Judge Filemon H. Mendoza, dated May 8,
1978, setting aside the order of dismissal dated March 28, 1978 issued by him
in Criminal Case No. C-1061 entitled “People of the Philippines,
Plaintiff, versus Leopoldo Salcedo, Accused.”

The record shows that on November 11, 1977, Provincial Fiscal
Nestor M. Andrada of Oriental Mindoro filed a criminal information for homicide
through reckless imprudence against the herein petitioner Leopoldo Salcedo,
docketed as Criminal Case No. C-1061 of the Court of First Instance of Oriental
Mindoro; Branch I.

Upon arraignment on December 19, 1977, petitioner entered a plea
of not guilty and the case was then set for trial on the merits on January 25,
1978. When the case was called for
trial on that date, Provincial Fiscal Nestor M. Andrada asked for postponement
to February 22, 1978, which was granted, because the accused failed to appear. When the case was called for trial on February
22, 1978, the prosecution, through Assistant Provincial Fiscal Emmanuel S.
Panaligan, once more moved for its postponement and the case was reset for
trial on March 28, 1978.

On March 28, 1978, when the case was called for trial, no
prosecuting fiscal appeared for the prosecution. A private prosecutor, Atty. Juan P. Adzuarra, who with­drew his
appearance from the case and reserved the right to file a separate civil
action, moved for its postponement in order to give the prosecution another
chance because they intend to request the Ministry of Justice to appoint a
special prosecutor to handle the case. The trial court, however, denied the said motion. Whereupon, the petitioner, through counsel,
Atty. Edgardo Aceron, moved for the dismissal of the criminal case against him
invoking his constitutional right to speedy trial and respondent Judge issued
an order dismissing the case, the pertinent portion of which reads as follows:

“Atty. Edgardo Aceron moved that con­sidering the fact that
this is the third time that this case was postponed always at the instance of
the fiscal, although the first postponement was made by the provincial fiscal
in behalf of the accused who failed to appear, the Court orders the dismissal
of this case with costs de officio.

“Although the government is interested in the prosecution of
this case, the Court must also take into consideration the interest of the
accused for under the Constitution he is entitled to a speedy administration of
justice, hence the dismissal of this case.

“IT IS SO ORDERED” (pp. 2-3, Annex A, Petition for
Certiorari, pp. 14-14A, rec.).

On the same day, the prosecution, through Assistant Provincial
Fiscal Arthur B. Panganiban, filed a motion to reconsider the above order
(Annex B, Petition, p. 15, rec.). In an
order dated March 29, 1978, the trial court denied the motion “for lack of
merit, there being no assurance that the prosecuting fiscal will promptly and
adequately prosecute the case” (Annex C, Petition, p. 16, rec.). His first motion for reconsideration having
been denied, Assistant Provincial Fiscal Panga­niban filed a second motion for
reconsideration which the court set for hearing to April 20, 1978 (Annex D,
Petition, p. 17, rec.).

It appears that on April 20, 1978, the trial court issued an order
requiring both parties to submit within five (5) days from that date their
respective pleadings (Annex E, Petition, p. 19, rec.). However, the parties failed to comply with
the said order. On May 8, 1978,
respondent Judge entered the order here asked to be reviewed, setting aside the
order of dismissal dated March 28, 1978 and ordering that the case be set for
trial on June 5, 1978, as follows:

“Considering that both parties failed to comply with the order
of this Court dated April 20, 1978 giving them five (5) days from that date to
submit before the Court their respective pleadings, the Court in the
interest of justice sets aside the order of this Court dated March 28, 1978.

“Conformably with the above, let the trial of this case be set
to June 5, 1978 at 1:30 o’clock in the afternoon.

“Let the parties be notified accord­ingly.

“SO ORDERED” (Annex E, Petition, p. 19, underscoring
supplied).

Petitioner learned for the first time about the existence of the
above order on June 5, 1978, thus he filed on June 16, 1978 a motion for
reconsideration of the said order alleging that the dismissal of the criminal
case against him was equivalent to an acquittal and rein­statement of the same
would place him twice in jeopardy for the same offense (Annex F, Petition, p.
20, rec.).

On June 20, 1978, the trial court issued an order denying
petitioner’s motion for reconsideration and setting the case for trial on July
20, 1978 (Annex G, Petition, p. 24, rec.). Unable to obtain reconsidera­tion of the May 8, 1978 order, petitioner
filed the present petition for certiorari with preliminary injunction on
November 29, 1978 reiterating his con­tention that the dismissal of the
criminal case, which was upon his motion, predicated on his constitutional
right to a speedy trial, amounts to an acquittal, and therefore the
reinstatement of the same criminal case against him would violate tits right
against double jeopardy.

In Our resolution of December 8, 1978, the Court required the
respondents to comment on the petition. The Solicitor General, on behalf of the respondents, filed his comment
on January 26, 1979 agreeing with the petitioner that “a reinstatement of
this case would operate to violate his right against double jeopardy” (p.
4, Comment, p. 31, rec.).

The stand of the petitioner and the Solicitor General is well
taken. Time and again, We have said
that the dismissal of a criminal case predicated on the right of the accused to
speedy trial, amounts to an acquittal on the merits which bars the subsequent
prosecution of the accused for the same offense.

Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May
21, 1951), We said:

“If the defendant wants to exercise his constitutional right
to a speedy trial, he should ask, not for the dis­missal but for the trial of the
case. If the prosecution asks for the
post­ponement of the hearing and the court believes that the hearing cannot be
postponed anymore without violating the right of the accused to a speedy trial,
the court shall deny the post­ponement and proceed with the trial and require
the fiscal to present the witnesses for the prosecution; and if the fiscal does
not or cannot produce his evidence and consequently fails to prove the
defendant’s guilt beyond reasonable doubt, the Court, upon the motion of the
defendant, shall dismiss the case. Such
dismissal is not in reality a mere dismissal although it is generally so
called, but an acquittal of the defendant because of the prose­cution’s failure
to prove the guilt of the defendant, and it will be a bar to another
prosecution for the same offense even though it was ordered by the Court upon
motion or with the express consent of the defendant, in exactly the same way as
a judgment of acquittal obtained upon the defendant’s motion (People vs.
Salico, 84 Phil. 722)” [underscoring supplied].

And in the case of People vs. Diaz (94 Phil. 714, 717, March 30,
1954), wherein the prosecution failed to appear on the day of the trial, We
reiterated the Gandicela doctrine stating that:

“x x x Here the prosecution was not even present on the day of
the trial so as to be in a position to proceed with the presentation of
evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking
for postponement or giving any explanation, just failed to appear. So the dismissal of the case, tho at the
instance of defendant Diaz may, according to what we said in the Gandicela
case, be regarded as an acquittal” (underscoring supplied).

Likewise, in People vs. Abaño (97 Phil. 28, May 17, 1955), wherein
the court dismissed the case upon the motion of the accused for failure of the
prosecution to produce its evidence, We held that:

“The defendant was entitled to a speedy trial. x x The defendant was placed in jeopardy of
punishment for the offense charged in the information and the annulment or
setting aside of the order of dismissal would place him twice in jeopardy of
punishment for the same offense.”

Furthermore, in People vs. Tacneng (L-12082, April 30, 1959),
where the Court ordered the dismissal of the case upon the motion of the
accused because the prosecution was not ready for trial after several post­ponements,
this Court held that

“x x when criminal case No. 1793 was called for hearing for the
third time and the fiscal was not ready to enter into trial due to the absence
of his witnesses, the herein appellees had the right to object to any further
postponement and to ask for the dis­missal of the case by reason of their
constitutional right to a speedy trial; and if pursuant to that objection and
petition for dismissal the case was dismissed, such dismissal amounted to an
acquittal of the herein appellees which can be invoked as they did, in a second
prosecution for the same offense” (underlining supplied).

Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a
case with a similar factual setting as that of People vs. Tacneng, supra,
We ruled that:

“In the circumstances, we find no alternative than to hold
that the dis­missal of Criminal Case No. 11065 is not provisional, in character
but one which is tantamount to acquittal that would bar further prosecution of
the accused for the same offense.”

Later, in the 1960 case of People vs. Labatete (107 Phil. 697,
April 27, 1960), this Court pointed out that:

“x x x where the fiscal fails to prosecute and the judge
‘dismisses’ the case, the termination is not real dismissal but acquittal
because the prosecution failed to prove the case when the trial therefor
came.”

And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364,
April 29, 1961), where the court dis­missed the case because of the apparent
lack of interest of the complainant to prosecute the case, this Court again
ruled that:

“Such dismissal, made uncondi­tionally and without reservation,
after plea of not guilty, and apparently predicated on the con­stitutional
right of the accused to a speedy trial, is, x x x, equivalent to an
acquittal. And being an order of
acquittal, it became final immediately after promulgation and could no longer
be recalled for correction or reconsideration (People vs. Sison, L-11669,
January 30, 1959; Catilo vs. Abaya, 94 Phil. 1014; 50 Off. Gaz., [6] 2477;
People vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.] 71), with or
without good reason.”

In the more recent case of People vs. Cloribel (11 SCRA 805,
August 31, 1964) where the Court again ordered the dismissal of the case upon
motion of the accused because of the failure of the prosecution to appear, WE
had occasion again to reiterate Our previous rulings, thus:

“X x x the dismissal here complained of was not truly a
‘dismissal’ but an acquittal. For it
was entered upon the defendant’s insistence on their consti­tutional right to
speedy trial and by reason of the prosecution’s failure to appear on the date
of trial.”

In the present case, the respondent Judge dismissed the criminal
case, upon the motion of the petitioner invoking his constitutional right to
speedy trial, because the prosecution failed to appear on the day of the trial
on March 28, 1978 after it had previously been postponed twice, the first on
January 25, 1978 and the second on February 22, 1978.

The effect of such dismissal is at once clear. Following the established jurisprudence, a
dismissal predicated on the right of the accused to speedy trial upon his own
motion or express consent, amounts to an acquittal which will bar another
prosecution of the accused for the same offense. This is an exception to the rule that a dismissal, upon the
motion or with the express consent of the accused, will not be a bar to the
subsequent prosecution of the accused for the same offense as provided for in
Section 9, Rule 113 of the Rules of Court. The moment the dismissal of a crimi­nal case is predicated on the right
of the accused to speedy trial, even if it is upon his own motion or express
consent, such dismissal is equivalent to acquittal. And any attempt to prosecute the accused for the same offense
will violate the constitutional prohibition that “no person shall be twice
put in jeopardy of punishment for the same offense” (New Constitution,
Article IV, Sec. 22).

The setting aside by the respondent Judge on May 8, 1978 of the
order of dismissal of March 28, 1978 and thereby reviving or reinstating
Criminal Case No. C-1061 places the petitioner twice in jeopardy for the same
offense. The respondent Judge therefore
committed a grave abuse of discretion in issuing the order of May 8, 1978
setting aside the order of dismissal issued on March 28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE
CHALLENGED ORDER DATED MAY 8, 1978 IS HEREBY SET ASIDE AS NULL AND VOID. NO COSTS.

SO ORDERED.

Teehankee, (Chairman), Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.