FRANCO GORION, PETITIONER, VS. REGIONAL TRIAL COURT OF CEBU, BRANCH 17, PRESIDED BY HON. JOSE BURGOS, PEOPLE OF THE PHILIPPINES, REPRE­SENTED BY CITY PROSECUTOR RODULFO PEREZ AN…

May an order dismissing a criminal case after the accused had
been arraigned, issued in open court through inadvertence or mistake during a
hearing that had already been cancelled, be set aside by the court and the case
tried without placing the accused in double jeopardy?

This is the issue in this case.

On 17 October 1989, after conducting the appropriate preliminary
investigation pursuant to a complaint filed by one Bonifacio Bacaltos, the
Office of the City Prosecutor of Cebu City filed with the Regional Trial Court
of Cebu an information charging the petitioner with the crime of Estafa
involving the amount of P50,000.00. The
case was docketed as Criminal Case No. CBU-16726^[1] and
was raffled to Branch 17 of said court.

Upon his arraignment on 12 March 1990, the petitioner entered a
plea of not guilty and the court set the pre-trial and trial of the case for 17
April 1990.^[2]

The pleadings of the parties do not reveal what transpired on 17
April 1990. It appears, however, that
hearing was again scheduled for 27 and 28 September 1990.

When the case was called for hearing on 27 September 1990,
neither the petitioner nor the accused was present. Not wanting to take advantage of their absence, and considering
that there were other cases to be heard, the prosecutor moved for the
cancellation of the hearing on that date as well as the hearing to be held the
following day, which the court granted. The hearing was reset to 4 October 1990. The pertinent portions of the transcript of stenographic notes of
the proceedings on 27 September 1990 read:

“ATTY. GAMELO FAJARDO:

I
appear as private prosecutor in this case, Your Honor.

FISCAL RODOLFO PEREZ:

For the Prosecution,
Your Honor.

COURT:

Where is (sic) the
accused and the defense counsel?

ATTY. FAJARDO:

I have not seen them
in the courtroom, Your Honor.

FISCAL PEREZ:

The
private complainant is coming, Your Honor, but we do not want to take advantage
of the absence of the accused and his defense counsel. We are willing to give them opportunity
(sic) to present their evidence.

ATTY. FAJARDO:

Inasmuch
as there are other cases to be heard by the Court this morning, we might as
well reset the hearing.

FISCAL PEREZ:

I
suggest that we cancel the hearing scheduled for today and also for tomorrow,
September 28, 1990.

COURT:

What is your available
calendar date?

(NOTE)

(The
Fiscal, private prosecutor and the Court, after going over their available
calendar dates, finally agreed to call this case again on October 4, 1990 at
11:00 A.M.)

COURT:

Upon
suggestion of the prosecution, cancel the hearing scheduled for today and
tomorrow, September 28, 1990, and reset the same to October 4, 1990, at 11:00
A.M. in order to give the prosecution the last opportunity to present its
evidence. Fiscal Rodolfo Perez, and
private prosecutor Atty. Gamelo Fajardo are notified in open court. Furnish Atty. Eutiquiano Bilocura, defense
counsel, with a copy of this order. Notify the accused and the private complainant.”^[3]

Unfortunately, however, the case was still included in the trial
calendar of the court for 28 September 1990. When the case was called for hearing on that date, only the Fiscal
appeared for the prosecution. The court
then issued the following order dismissing the case:

“ORDER

When this case was called for hearing today for the presentation of
evidence for the prosecution, only the Fiscal appeared without his witnesses.

In view thereof, this case is hereby ordered DISMISSED for failure
to prosecute with costs de officio.

Furnish the private complainant, the private prosecutor, defense
counsel and the accused each with a copy of this Order.

SO ORDERED.”^[4]

Counsel for the petitioner, Atty. Eutiquiano Bilocura, received a
copy of this order on 4 October 1990. However, he received a copy of the 27 September 1990 Order only on 15
June 1992.^[5]

The pleadings of the parties do not reveal what actually
transpired on 4 October 1990. In any
event, the case was called again on 31 May 1991, but the Court reset the
hearing to 18, 22, 23 and 25 July 1991 on the ground that it had not yet
received from the Chief Justice of this Court a reply to the Presiding Judge’s
request for an extension of the trial dates.^[6]

On 2 July 1991, petitioner filed a Motion to Dismiss^[7]
alleging therein that the dismissal of the case by the court on 28 September
1990 without his consent amounted to his acquittal; hence, he would be placed
in double jeopardy, prohibited under Section 21, Article III of the New
Constitution in relation to Section 3(h), Rule 117 of the 1985 Rules of Criminal
Procedure, if the case were to be “reopened or continued.”

The trial court set aside the dismissal order of 28 September
1990 in its Order of 9 August 1991 on the ground that the court was only misled
in issuing the same due to the stenographer’s failure to transcribe the order
given in open court issued the previous day; hence, it was issued without due
process.

Also on 9 August 1991, the court denied the petitioner’s motion
to dismiss on the ground that the order of dismissal of 28 September 1990 was set
aside in the aforesaid order of
9 August 1991.^[8]

On 16 September 1991, petitioner filed a motion to reconsider the
order denying his motion to dismiss; he alleges therein that he cannot be
blamed or faulted for (a) any error in the dismissal of the case, (b) the
failure of the stenographer to type the order, and (c) the inclusion of the
case in the calendar of 28 September 1990. And even assuming arguendo that the court erroneously dismissed
the information, he asserts that in
accordance with this Court’s
ruling in People vs. Hernandez,^[9] People vs. Ferrer,^[10] People vs. Borja^[11] and People vs. Gil,^[12] the reopening, continuation thereof or
appeal therefrom by the State will place him in double jeopardy.

In its Order of 18 September 1991, the court denied the aforesaid
motion for reconsideration by reiterating the reasons upon which it anchored
its denial order of 9 August 1991, and holding that the cases abovecited are
not applicable since they involve dismissals grounded on lack of jurisdiction.^[13]

Hence this petition, filed on 2 October 1991, wherein petitioner
reiterates the issues raised and the arguments adduced before the trial court
and asks this Court to set aside the Orders of 9 August 1991 denying the motion
to dismiss, and 18 September 1991
denying the motion for reconsideration, for having been rendered without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction.^[14]

On 10 March 1992, after extensions of time were granted them,
public respondents, through the Office of the Solicitor General, filed their
Comment to the petition in compliance with the Resolution of 6 November 1991.^[15]
They assert therein that the order of dismissal of 28 September 1990 was a mistake
and was thus issued without due process as there was in fact no hearing on that
date; hence, the dismissal was null and void and of no effect. Besides, petitioner did not object to the
dismissal; thus, he cannot invoke double jeopardy.

Petitioner filed, on 24 February 1992,^[16]
a Reply to the Comment. In refutation
of the public respondents’ assertion that he did not object to the dismissal,
petitioner maintains that his silence or failure to object is not the express
consent contemplated by Section 7, Rule 117 of the Rules of Court that
would bar him from pleading double jeopardy.

We resolved to give due course to the petition, consider the
Comment as the Answer and decide this case on the merits.

The petition must fail.

It is obvious to this Court that the trial court was, on 28
September 1990, divested of jurisdiction, pro hac vice, to
issue any order, much less one of dismissal, in Criminal Case No. CBU-16727 for
the simple reason that said case was already effectively removed from its trial
calendar for that date in view of the previous day’s order cancelling the
hearing of the case on 27 and 28 September 1990. Plainly, the court should not have included the case for hearing
in the 28 September 1990 trial calendar. The respondent Court attributed the mistake to the stenographer’s
failure to immediately transcribe the order. This, of course, is passing the buck too far.

The Judge, Clerk of Court and the prosecution should shoulder the
blame because unless amnesia suddenly struck all of them simultaneously, it
cannot be imagined that in a brief span of about twenty-four (24) hours, they
had all forgotten about the order dictated in open court cancelling the hearing
for 27 and 28 September 1990. For the
prosecutor who orally moved for such cancellation and the Judge himself who
dictated the said order, no plausible explanation may be offered for such
lapse. Apparently, the latter did not
read the calendar before the start of the session that day, and the branch
clerk of court who probably prepared the same one or two days earlier, did not
bother to review it anymore. And in the
event that said clerk of court failed to attend the session, he or she did not
read the minutes of the case as prepared by a subordinate. Upon the other hand, the prosecutor literally
slept on his duty when he failed to immediately inform the court of the
previous day’s order of cancellation of hearing which obviously accounted for
the absence of both the witness and the private prosecutor, and kept his
unusual silence in the face of the open court dictation of the order of
dismissal. This ineptitude cannot be
condoned. Prosecutors should always be
mindful of the heavy burden of responsibility which they bear in prosecuting
criminal cases because they represent no less than the People of the
Philippines and the State.

The erroneous dismissal order of 28 September 1990 was then
issued capriciously and arbitrarily; it unquestionably deprived the State of a
fair opportunity to present and prove its case. Thus, its right to due process was violated. The said order is null and void and hence,
cannot be pleaded by the petitioner to bar the subsequent annulment of the
dismissal order or a re-opening of the case on the ground of double
jeopardy. This is the rule obtaining in
this jurisdiction.

In People vs.
Balisacan,^[17] the accused at his arraignment
pleaded not guilty and was allowed to present mitigating circumstances; he thus
testified that he stabbed the deceased in self-defense. The trial court thereafter, without
receiving the evidence for the prosecution, promulgated a decision acquitting
the accused; the prosecution appealed therefrom. We then rejected the plea of double jeopardy therein not only
because of the fatal procedural flaw of failure to re-arraign the accused after
he, in effect, vacated his plea of guilty thus resulting in the absence of a
plea which is an essential element of double jeopardy, but also because:

“x x x the court a quo decided the case upon the merits
without giving the prosecution an opportunity to present its evidence or even
to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental
prerequisite, its action is perforce null and void. The acquittal, therefore, being a nullity for want of due
process, is no acquittal at all, and thus can not constitute a proper basis for
a claim of former jeopardy. (People vs.
Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235; McCleary vs. Hudspeth, 124 Fed. 2d.
445).”

In People vs. Gomez,^[18]
where the motion of the Assistant City Fiscal to postpone the hearing of a
criminal case -? because the Special Prosecutor actively handling the
case was not served with a notice of the said hearing and the former was not
ready because the records were with the latter — was denied by the respondent
judge in open court, resulting in the eventual dismissal of the case, this
Court ruled that such dismissal was capricious and rendered with grave abuse of
discretion amounting to an excess of jurisdiction, thus depriving the state of
a fair opportunity to prosecute and convict. Such a dismissal order, made sua
sponte, for no proper
reason at all, is void for being issued without authority.

In Serino vs. Zosa,^[19] where both the Assistant Provincial
Fiscal and private prosecutor were readily available, having merely stepped out
of the courtroom when the Judge announced that he would first finish the trial
of another case, but after said trial was completed and the criminal case was
called again, both were not yet around, thus prompting the court to issue an
order dismissing the case for failure to prosecute, which it nevertheless set
aside on a motion for reconsideration, this Court rejected the plea of double
jeopardy on the ground that the order of dismissal was null and void for lack
of due process, and hence was correctly set aside by the Judge himself.

In People vs. Navarro,^[20] this Court nullified a judgment of
acquittal in a criminal case for light threats which was erroneously decided
together with a case for frustrated theft against the same accused in a joint
decision, despite the fact that there was no joint trial in said cases and no
hearing had as yet been conducted in the light threats case, because in
rendering the judgment in the latter, the Judge acted with abuse of discretion
amounting to excess or lack of jurisdiction. It is therefore null and void ab
initio. Having been rendered by a court which
had no power to do so, it is as though there had been no judgment; it is coram non judice.

In People vs. Pablo,^[21] this
Court struck down as having been issued with grave abuse of discretion
amounting to lack of jurisdiction an order of the court acquitting the accused,
later on amended to be merely one of dismissal of the case, issued when the prosecution
asked for a postponement upon its inability to produce its last but vital and
indispensable witness who would have testified on the cause of death of the victim, the subpoena for
whom was received by his secretary, despite the fact that five (5) witnesses
for the prosecution had already testified. Said order could not be used to invoke double jeopardy.

In People vs. Bocar,^[22] where after the accused entered their
plea of not guilty, the Judge, instead of receiving the evidence for the
prosecution, conducted a summary investigation by directing questions to both
the complainant and the accused and at the end thereof, issued an order
dismissing the case on the ground that it is more civil than criminal, this
Court ruled that since no evidence in law had as yet been entered into the
records of the case, the dismissal order was arbitrary, whimsical and
capricious — a veritable abuse of discretion which this Court cannot permit.

In Saldana vs. Court of Appeals,^[23] where the trial judge had earlier issued
an order sustaining the objection of the defense to the presentation of one
Linel Garcia Cuevas on the ground that being a mere member of the complaining
Valle Verde Bagong Lipunan Community Association, Inc., he cannot be considered
as the complainant, and thereafter not only denied a motion to reconsider the
said order but also barred the prosecution from presenting other members of the
association from testifying and thereupon terminated the presentation of the
prosecution, and, acting on a motion to dismiss the case for insufficiency of
evidence, dismissed the case on said ground, this Court sustained the decision
of the Court of Appeals annulling the said order and reinstating the criminal
case in a petition for certiorari brought before the latter.

Coming back to the instant case, the dismissal order of 28
September 1990 being null and void because the trial court lost its
jurisdiction to issue the same and violated the right of the prosecution to due
process, it follows that Criminal Case No. CBU-16726 continues to remain at
that stage before the said order was issued. Consequently, the first jeopardy was not terminated and no second
jeopardy threatened the accused.

The three (3) requisites of double jeopardy are: (1) a first jeopardy must have attached
prior to the second, (2) the first jeopardy must have been validly terminated,
and (3) a second jeopardy must be for the same offense as that in the
first. Legal jeopardy attaches only (a)
upon a valid indictment, (b) before a competent court, (c) after arraignment,
(d) when a valid plea has been entered, and (e) when the case was dismissed or
otherwise terminated without the express consent of the accused.^[24]

It having been shown that in this case, the requisites of a valid
termination of the first jeopardy are not present, the petitioner cannot hide
behind the protective mantle of double jeopardy.

WHEREFORE, the petition is DISMISSED for lack of
merit. The respondent Court is hereby
directed to immediately place in its trial calendar Criminal Case No. CBU-16726
for the reception of the evidence of the parties and thereafter to decide the
same.

Costs against petitioner.

SO ORDERED.

Gutierrez, Jr., (Chairman), Bidin, and Romero, JJ., concur.

Feliciano, J., on official leave.

^[1]
Annex “A” of Petition; Rollo, 9-10.

^[2]
Annex “B”, Id.; Id., 11.

^[3]
Rollo, 57-59.

^[4]
Annex
“C” of Petition; Rollo, 13.

^[5]
Certification
of the
Branch
Clerk of Court, Elsie C.B. Quijano, dated 15 June 1992; Id., 68.

^[6]
Order
of 31 May 1991, Annex “D”, Petition, op. cit.; Id.,
14.

^[7]
Annex
“E” of Petition; Rollo, 15-17.

^[8]
Annex
“F”, Id.; Id., 19.

^[9]
49
O.G. No. 12, 5342.

^[10]
100
Phil.
124,
[1956].

^[11]
43
Phil. 618, [1922].

^[12]
7
SCRA 888, [1968]; Annex “G” of Petition; Rollo, 20-21.

^[13]
Annex
‘H”, Id.; Id., 22.

^[14]
Id., 3.

^[15]
Id., 39-48.

^[16]
Rollo, 51-52.

^[17]
17
SCRA 1119, 1122-1123 [1966].

^[18]
20
SCRA 293 [1967].

^[19]
40
SCRA 433 [1971].

^[20]
63
SCRA 264 [1975].

^[21]
98
SCRA 289 [1980].

^[22]
138 SCRA 166 [1985].

^[23]
190 SCRA 396 [1990].

^[24]
People vs. Bocar, supra.;
Saldana vs. Court of Appeals, supra.