WILFREDO ADVINCULA AND EDUARDO VILLAFLOR, PETITIONERS, VS. THE HONORABLE INTERMEDIATE APPELLATE COURT (THEN HON. COURT OF APPEALS) AND THE HONORABLE SOLICITOR GENERAL, RESPONDENTS.

For review on Certiorari is respondent Appellate Court’s
(1) Resolution, dated 30 September
1983, in AC-G. R. No. 23678-CR, disallowing petitioners’ appeal for
failure to take the necessary steps for the completion of the record within the
period specified by said Court, and (2) the Resolution, dated 8 November 1984,
denying petitioners’ Motion for Reconsideration.

On 9 January 1979, petitioners were convicted by the then Court of
First Instance of Leyte,
Branch IV, at Palo, Leyte, in Criminal Case No.
763, of two (2) crimes of Rape and sentenced in each case to ten (10) years and
one (1) day of prision mayor to
seventeen (17) years and one (1) day of reclusion temporal.^[1] After denial of a Motion for New Trial by
said Court, they filed a Notice of Appeal on 8 August 1979.  In an Order dated 31 August 1979, the Trial Court
directed the Clerk of Court to transmit to the Appellate Court the complete
record of the case including the transcript of stenographic notes within five
days from said date.

However, due to the loss of some of the stenographic notes, the
Appellate Court, in a Resolution dated 11 January 1982, and upon previous
comments obtained from petitioners and the Solicitor General, ordered the remand
of the case to the Trial Court for the retaking of the testimony of defense
witness, Father Bartolome Pastor, contained in the
lost transcript of stenographic notes of stenographer Juliet Parce, and for the identification of Exhibits “G”, “H”, “4”
and “4-A” of the prosecution and the defense, respectively.

The required testimony was retaken by the Trial Court on 27 April
1982 and on 1 June 1982, and forwarded together with the records by Deputy Clerk
of Court of the Court of First Instance of Leyte,
Atty. Fortunato P. Araullo,
on 8 June 1982, to the Appellate Court addressed to Elsa de Guzman, Third
Division Clerk of the latter Court.

On 17 May
1983, the Appellate Court required petitioners, within
20 days from notice, to take the necessary steps for the completion of the records, otherwise, the appealed would be dismissed in
accordance with Section 1(h), Rule 50 of the Rules of Court.^[2]

On 30 September
1983, the Appellate Court:

“Acting on the report of the Docket Division that petitioners had
not complied with the resolution of May 17, 1983, x x
x requiring them to take the necessary steps for the
completion of the records (transcripts) that have been pending since 1980, the
Court RESOLVED TO DISMISS the appeal pursuant to Section 1(h) of Rule 50 of the
Rules of Court.”

On 16 November
1983, the Resolution of dismissal became final and executory and entry of judgment was made on 19 December 1983 by the Appellate Court.

On 12 January
1984, petitioners moved for reconsideration of the Order of dismissal
arguing that what may have prompted the dismissal was that the retaken testimony
of Fr. Pastor, which was forwarded to the Appellate Court, may not have been
attached to the records.  Commenting thereon, the Solicitor General
maintained that the reconsideration sought was too late, entry of judgment
having been already made, and the records remanded to the Trial Court.

On 23 July
1984, the Appellate Court issued a Resolution requiring petitioners
“to verify and examine if the records are really complete, including the
transcripts retaken as ordered by the resolution of January 11, 1982, and to file a manifestation to
that effect.”

Complying therewith, petitioners’ new counsel (the former counsel
having died on 26 July 1984)
submitted a Certification by the Deputy Clerk of Court of the Trial Court, Fortunato F. Araullo, reading:

“x x x (t)he steno-type notes of former Stenographer Remedios Petilla in Crim. Case No. 763, People of the Philippines vs.
Wilfredo Advincula, et al.,
taken March 5, 1974 could not be found inspite
diligent efforts in locating the same by the employee in charge of keeping her
notes.  With regards to the steno-type notes of stenographer Herminigilda Aguila, her notes
were forwarded to her station in Quezon City for transcription. 
Until date, the same have not been submitted by said stenographer. 
x x x“^[3]

Required to comment thereon, the Solicitor General reiterated his
position that the appeal should not be reinstated on the ground that in spite of
the Appellate Court’s Order to petitioners to take the necessary steps to
complete the record, the same was still incomplete in that not only was the
transcript of the stenographic notes containing the testimony of Fr. Pastor
missing but that the transcript of the stenographic notes taken by stenographers
Remedios Petilla and Herminigilda Aguila had neither
been transcribed.

On 8 November
1984, respondent Appellate Court found the comment of the Solicitor
General well founded and denied petitioners’ Motion for Reconsideration, since
its Resolution dated 30 September
1983 had already become final and executory.

At issue is the question of whether or not respondent Appellate
Court committed grave abuse of discretion in dismissing the appeal.

We are constrained to rule in the affirmative. 
Petitioners’ right to a hearing on appeal has not been accorded full
respect.

In all criminal prosecutions the accused shall have the right of
appeal in the manner prescribed by law.^[4] Because the right to appeal is granted by
the statute, it is part of due process of law, denial of which violates the due
process clause of the Constitution.^[5]
Appeal being an essential part of our judicial system, Courts should proceed
with caution so as not to deprive a party of the right to appeal.^[6]

Section 1 of Rule 50 under which respondent Court dismissed
petitioners’ appeal merely confers a power and does not impose a duty; and the
same is not mandatory but merely directory which thus requires a great deal of
circumspection, considering all the attendant circumstances.^[7]

It was primarily because of the negligence and lackadaisical
attitude of the Court stenographic reporters that the notes of the proceedings
were either lost or not transcribed.  This nonfeasance should not
prejudice the right of the accused-appellants to have their convictions reviewed
by a higher Court, especially since it is their liberty which is at stake.

As early as 31 August
1979, the Trial Court directed its Clerk of Court to transmit to the
Appellate Court the complete records of the case, including the transcript of
stenographic notes within five (5) days therefrom.^[8] The Rules impose upon the stenographic
reporters the duty to transcribe their stenographic notes of the proceedings, to
certify to the correctness of the notes and the transcript thereof and to file
the transcripts with the Clerk without unnecessary delay.^[9] The Rules further require, upon an appeal
being taken, that the Clerk or Judge of the Court with whom the notice of appeal
shall have been filed, must, within five (5) days after the filing of the
notice, transmit to the Clerk of the Court to which the appeal is taken,
the complete record in the case.  In fact, the Rules require that
the transcript of stenographic notes be also transmitted to the Clerk of the
Appellate Court together with the record, or as soon thereafter as possible.^[10] It is the Clerk of Court who is primarily
responsible for seeing to it that records of appealed cases as well as the
transcripts of stenographic notes are properly sent to the Appellate Court
without delay; although the party litigants should also see to it that the Court
is made aware of any delay in action over their cases.^[11]

It devolves upon the Government and not on the defendant to cause
to be kept and in case of an appeal by the defendant, to be sent to the
Appellate Court, a complete record of the proceedings in the Court of First
Instance; and when the record so sent is deficient the appeal will not be
dismissed on motion of the Government.^[12] When the record sent in a criminal case
does not contain all the testimony given in the Court below, and the testimony
lacking can not be obtained, the case must be remanded to the Court below for a
new trial to the extent of the missing evidence.^[13]

The deprivation of petitioners’ right to appeal in violation of
due process vitiated the final and executory Order of
respondent Appellate Court and is a valid ground for setting it aside.^[14]

ACCORDINGLY, respondent Appellate Court’s Resolutions of
September 30, 1983 and November 8, 1984 in AC-G.R. CR No. 23678 entitled
“The People of the Philippines, Plaintiff-Appellee, versus, Alfredo
Advincula, et al., Accused-Appellants” are hereby SET ASIDE, and said Court
is hereby directed to recall the entry of judgment, reinstate the appeal, and
take such remedial steps as may be necessary to complete the records either
through administrative sanctions or by remanding the case for new
trial.

SO
ORDERED.

Yap, (Chairman), Narvasa, Cruz, Feliciano,
and Gancayco, JJ.,
concur.

^[2] An appeal may be dismissed by the
Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

(h) Failure of the appellant to take the necessary steps for
the correction or completion of the record within the time limited by the court
in its order;

^[3] Rollo, p.
95.

^[4] Section 1(i), Rule 115, 1985 Rules on Criminal Procedure.

^[5] Reyes vs. Court of
Appeals, 80 SCRA 144 (1977).

^[6] Castro vs. Court of
Appeals, 123 SCRA 782 (1983).

^[7] Reyes vs. Court of
Appeals, supra.

^[8] Rollo, p. 13.

^[9] Section 7, Rule 122, 1985 Rules on
Criminal Procedure.

^[10] Section 8, ibid.

^[11] Jumalon vs. Montes, 113 SCRA 103 (1982).

^[12] U. S. vs. Tan, 4 Phil.
625 (1905).

^[13] Ibid.

^[14] Laxamana vs. Court of
Appeals, 87 SCRA 48 (1978).