ANTONIO A. GUNAY, PETITIONER, VS. COURT OF APPEALS, RESPONDENT.

The Court of Appeals in its decision in CA-G.
R. No. 19873-Cr., People vs. Antonio Gunay y Andreda, promulgated on May 10, 1978, affirmed the trial court’s judgment
convicting him of homicide and damage to property through reckless imprudence.  A copy of that decision was served on
defendant-appellant’s counsel on May
12, 1978.

On May 19, 1978,
his counsel sent by registered mail to the Court of Appeals a motion for the
reconsideration of the said decision. 
That fact was certified to by the postmaster at
at the provincial capitol of Pasig, Rizal
(Annex C of petition).  Copies of that
motion, also sent by registered mail, were received by the Solicitor General’s
Office and the Citizens Legal Assistance Office (Annexes D and E of the
petition).

However, the original motion was not attached to the record of
the case or could not be found in the Court of Appeals.  On the assumption that the judgment had
become final and executory, entry of judgment was
made in that case on May 27, 1978.  The record was remanded to the court of
origin on July 18, 1978.

The Court of Appeals in its resolution of August 28, 1978 (copy received by appellant on September 4, 1978) denied the motion
of appellant Gunay for the setting aside of the entry
of judgment.  The denial was based on the
ground that “no motion for reconsideration has been filed” by the
appellant.

On September 15, 1978, Gunay filed in
this Court a petition praying that the Court of Appeals’ resolution of August
28, 1978 be set aside and that, after a review of the Appellate Court’s
decision, he be acquitted.

It appears that Gunay’s motion for
reconsideration is now attached to the record of CA-G. R. No.
198730, having been received in the docket section only on September 28, 1978.  The Solicitor
General recommends that Gunay’s motion should be
resolved.

We find that the entry of judgment in the Court of Appeals was
made under an honest mistake of fact or under the erroneous assumption that Gunay did not file a motion for reconsideration.

WHEREFORE, in the interest of justice, the resolution of
the Court of Appeals dated August 28,
1978, denying Gunay’s motion to set aside
the entry of judgment, is hereby reversed.  The Court of Appeals is directed to cancel
the entry of judgment and to pass upon Gunay’s motion
for reconsideration.  The clerk of court
of Branch II of the city court of Quezon City is
directed to elevate to the Court of Appeals within three days from notice the
record of People vs. Gunay, Criminal Case No. II-112036.  No costs.

SO ORDERED.

Fernando, (Chairman), Barredo,
Antonio, Concepcion, Jr., and Santos, JJ., concur.