EDUARDO HILVANO, PETITIONER, VS. FIDEL FERNANDEZ, JUDGE OF THE COURT OF FIRST INSTANCE OF SAMAR, RESPONDENT.

Petitioner Eduardo Hilvano was accused of the crime of malversation of public
funds in criminal case No. 2585 of the Court of First Instance of Samar. Upon
arraignment, he entered a plea of not guilty to the information, but prayed for
a continuance, which was granted. At the hearing of Juanary 16, 1953, however,
he petitioned the court to allow him to withdraw his plea of not guilty and to
substitute it with one of guilty. His petition was granted, and on the same day,
judgment was rendered sentencing him to suffer an indeterminate penalty of from
8 years to 10 years and 8 months of prision mayor, with perpetual
disqualification, to pay a fine of P12,000, to indemnify the government in the
sum of P12,644.50, and to pay the costs. The petitioner, who was out on bail,
requested through the Department of Justice, that he be allowed to serve
sentence in Muntinlupa prison, waiving the reading of the sentence in Samar; and
accordingly, the sentence was read to him in the New Bilibid Prisons in
Muntinlupa, Rizal, on April 3, 1954; and on the same day, he commenced serving
sentence.

On April 12, 1954, petitioner filed a motion for the reconsideration of the
aforesaid judgment, upon the ground that the penalty meted out by the Court was
excessive. This petition was denied and copy of the order of denial was received
by petitioner on May 24, 1954. On May 27, 1954, petitioner filed notice of
appeal with the Office of the Director of Prisons, together with a motion for
the reduction of his personal bail bond to enable him to file an appeal bond. He
swore to his notice of appeal on May 27, 1954, and submitted to the trial court
on June 1, 1954. Because the trial court refused to give due course to his
appeal and denied his motion for reduction of bail, petitioner filed this
petition for a writ of mandamus with this Court to compel the
respondent Judge to allow his appeal and to fix his appeal bond at P10,000.

It is admitted by the petitioner that the judgment of the lower Court finding
him guilty of the crime charged in Criminal Case No. 2585 was promulgated on
April 3, 1954, and that he commenced to servo sentence on the same day (Amended
Petition, par. 3). In fact, in an affidavit attached to his petition before this
Court to be allowed to litigate as pauper, he states that he is at present
confined in Muntinlupa serving sentence because of the decision in question.
Therefore, the judgment rendered against him had become final and nonappealable
on April 3, 1954, when he commenced serving sentence (Rule 116, section 7;
Gregorio vs. Director of Prisons, 43 Phil., 650; People vs.
Quebral, 76 Phil., 294, 42 Off. Gaz., 2788; People vs. Feliciano, 89
Phil., 664); hence, the lower Court did not err in disallowing his appeal filed
after it had already lost jurisdiction over the case.

Petitioner contends that he was committed to prison on April 3, 1954, not for
the purpose of commencing service of sentence, but on account of his inability
to procure bond for his provisional release; and that his commitment not having
been accompanied by his assent or conformity to the judgment, said judgment did
not become final on said date. There is no merit in this contention. As we have
already pointed out, petitioner admits in his petition that he was committed to
the New Bilibid prisons on April 3, 1954 “to serve the sentence”; and it appears
from the order of the Court below of March 19, 1954 (Annex 3, Memorandum for
Respondents) that petitioner was not only out on bail before his commitment, but
that he had even requested the Secretary of Justice to ask the trial Court to
authorize the Director of Prisons in Muntinlupa to read sentence to him, because
he desired to enter jail without appearing in the Court of First Instance of
Samar for the promulgation of the judgment against him.

Considering that petitioner himself expressed his desire to serve sentence
meted upon him, and that sucii desire necessarily imports knowledge of and
willingness to abide by the penalty meted by the trial Court, the judgment
against petitioner became final and executory on April 3, 1954 when he started
serving sentence thereon. Therefore, it becomes unnecessary for us to determine
whether or not his notice of appeal was filed within fifteen days from
promulgation of the judgment.

The petition for mandamus is denied. Without costs.

Pablo, Acting C. J., Bengzon, Montemayor, Bautista Angelo, and
Concepcion, JJ., concur.

Petition denied.