Group No.

6
Criminal Procedure
Section 10
Hon. Philip Charles G. Santos
Rule 120

348 SCRA 197

COURT OF APPEALS Plaintiff-Appellee,

vs.
MARILYN PASCUA, Accused-Appellant.

Before us is a petition that calls for a ruling on the aforestated issues,

particularly seeking the reversal of the decision of the Court of Appeals dated
June 17, 1999 and its order dated September 28 1999 denying reconsideration.
The Court of Appeals dismissed the petition for certiorari under Rule 65 filed by
petitioner which questioned the legality of the orders dated June 22, 1998 and
October 8, 1998 issued by Branch 153 of the Regional Trial Court of the National
Capital Judicial Region stationed in Pasig City.

FACTS:

Petitioner was charged under 26 Informations for violation of Batas Pambansa

Blg. 22. The Informations alleged that in 1989, petitioner issued 26 Philippine
National Bank (PNB) checks to apply on account or for value in favor of Lucita
Lopez, with the knowledge that at the time of issue, petitioner did not have
sufficient funds in or credit with the drawee bank for the payment of the face
value of the checks in full. Upon presentment of the subject checks, they were
dishonored by the drawee bank for having been drawn against insufficient funds
and against a closed account.

After trial, a judgment of conviction was rendered on February 17, 1998,

disposing:
WHEREFORE, the Court finds the accused, MARILYN C. PASCUA, GUILTY beyond
reasonable doubt of twenty six (26) counts of Violation of Batas Pambansa Bilang
22, and hereby sentences her to suffer ONE (1) YEAR imprisonment in each case
and to pay the private complainant, LUCITA LOPEZ in the sum of SIX HUNDRED
FIVE THOUSAND PESOS (P605,000.00), Philippine Currency, without subsidiary
imprisonment in case of insolvency.

The judgment was initially scheduled for promulgation on March 31, 1998.
However, considering that the presiding judge was on leave, the promulgation
was reset to May 5, 1998.
When the case was called on May 5, 1998, Public Prosecutor Rogelio C. Sescon
and defense counsel Atty. Marcelino Arias appeared and manifested their
readiness for the promulgation of judgment, although the latter intimated that
petitioner would be late. Hence, the case was set for second call. After the lapse
of two hours, petitioner still had not appeared. The trial court again asked the
public prosecutor and the defense counsel if they were ready for the
promulgation of judgment. Both responded in the affirmative. The dispositive
portion of the decision was thus read in open court. Afterwards, the public
prosecutor, the defense counsel, and private complainant Lucita Lopez,
acknowledged receipt of their respective copies of the subject decision by
signing at the back of the original copy of the decision on file with the record of
the case.
Forthwith, the public prosecutor moved for the forfeiture of the cash bond posted
by petitioner as well as for the issuance of a warrant for her arrest. Acting on the
motion, the trial court issued, also on May 5, 1998, the following order:
When this case was called for the promulgation of judgment, the accused failed
to appear despite due notice. Upon motion of the Public Prosecutor, that the cash
bond posted for her provisional liberty be forfeited in favor of the government,
being well-taken, the same is hereby granted. Likewise, let a warrant of arrest be
issued against her.
SO ORDERED.

No motion for reconsideration or notice of appeal was filed by petitioner within

15 days from May 5, 1998.
On June 8, 1998, a notice of change of address was filed by petitioner with the
trial court, sent through a private messengerial firm. On the same date, without
terminating the services of her counsel of record, Arty. Marcelino Arias, the one
who received the copy of the judgment of conviction, petitioner, assisted by
another counsel, Atty. Rolando Bernardo, filed an urgent omnibus motion to lift
warrant of arrest and confiscation of bail bond, as well as to set anew the
promulgation of the subject decision on the following allegations: that petitioner
failed to appear before the trial court on the scheduled date of promulgation
(May 5, 1998) because she failed to get the notices sent to her former address at
No. 21 La Felonila St., Quezon City; that she had no intention of evading the
processes of the trial court; that in February 1998, she transferred residence to
Olongapo City by reason of an ejectment case filed against her by her landlord
concerning her former residence in Quezon City; and that due to the abrupt
dislocation of their family life as a result of the transfer of their residence to
Olongapo City, there were important matters that she overlooked such as the
filing of a notice of change of address to inform the trial court of her new place of
residence.
The motion was set for hearing on June 11, 1998 but on said date, neither
petitioner nor assisting counsel was present. On June 22, 1998, petitioner filed a
notice of appeal, the trial court issued an order denying petitioner’s urgent
omnibus motion and notice of appeal for lack of merit, mentioning that its
February 17, 1998 decision had already become final and executory.

On July 17, 1998, Attys. San Juan and Bautista as counsel for petitioner, filed a
motion for inhibition of the presiding judge. The motion was set for hearing on
July 28, 1998. Once again, petitioner failed to appear although Atty. Bautista did.
On October 8, 1998, the trial court denied petitioner’s motion for reconsideration
and inhibition.
On December 14, 1998, petitioner filed a petition for certiorari under Rule 65 of
the 1997 Rules of Civil Procedure with the Court of Appeals praying for the
nullification of the June 22, 1998 and October 8, 1998 orders of the trial court.
After an exchange of pleadings, on June 17, 1999, the Court of Appeals issued
the decision assailed herein. Petitioner moved for reconsideration, but to no
avail.

ISSUES:
(1) Whether or not the petitioner was not properly notified of the date of
promulgation and therefore, there was no valid promulgation; hence petitioner’s
period to appeal has not commenced;

(2) Whether or not the promulgation in absentia of the judgment against

petitioner was not made in the manner set out in the last paragraph of Section 6,
Rule 120 of the 1985 Rules on Criminal Procedure which then provided that
promulgation in absentia shall consist in the recording of the judgment in the
criminal docket and a copy thereof shall be served upon the accused or counsel;

(3) Whether or not the decision of the trial court is contrary to applicable laws
and that it disregarded factual evidence and instead resorted to make a
conclusion based on conjectures, presumptions, and misapprehension of facts.

HELD:

1. The resolution of the instant petition is dependent on the proper interpretation

of Section 6, Rule 120 of the 1985 Rules on Criminal Procedure, which
provides:

Section 6. Promulgation of judgment.—The judgment is promulgated by

reading the same in the presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative.
When the judge is absent or outside of the province or city, the judgment may be
promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment

may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the court
that rendered the judgment. The court promulgating the judgment shall have
authority to accept the notice of appeal and to approve the bail bond pending
appeal.

The proper clerk of court shall give notice to the accused personally or through
his bondsman or warden and counsel, requiring him to be present at the
promulgation of the decision. In case the accused fails to appear thereat the
promulgation shall consist in the recording of the judgment in the criminal
docket and a copy thereof shall he served upon the accused or counsel.

If the judgment is for conviction, and the accused’s failure to appear was without
justifiable cause, the court shall further order the arrest of the accused, who may
appeal within fifteen (15) days from notice of the decision to him or his counsel.

Incidentally, Section 6, Rule 120 of the Revised Rules of Criminal Procedure

which took effect December 1, 2000 adds more requirements but retains the
essence of the former Section 6, to wit:

Section 6. Promulgation of judgment.—The judgment is promulgated by

reading it in the presence of the accused and any judge of the court in which it
was rendered. However, if the conviction is for a light offense the judgment may
be pronounced in the presence of his counsel or representative. When the judge
is absent or outside the province or city, the judgment may be promulgated by
the clerk of court.
If the accused is confined or detained in another province or city the judgment
may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the court
which rendered the judgment. The court promulgating the judgment shall have
authority to accept the notice of appeal and to approve the bail bond pending
appeal; provided, that if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application
for bail can only be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through
his bondsman or warden and counsel, requiring him to be present at the
promulgation of the decision. If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him shall be served at his last
known address.
In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, the promulgation shall be made by recording the
judgment in the criminal docket and serving him a copy thereof at his last known
address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these Rules
against the judgment and the court shall order his arrest. Within fifteen (15) days
from promulgation of judgment however, the accused may surrender and file a
motion for leave of court to avail of these remedies. He shall state the reasons
for his absence at the scheduled promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to avail of said remedies within
fifteen (15) days from notice.

Significantly, both versions of said section set forth the rules that become
operative if the accused fails to appear at the promulgation despite due notice:
(a) promulgation shall consist in the recording of the judgment in the criminal
docket and a copy thereof shall be served upon the accused at his last known
address or through his counsel; and (b) if the judgment is for conviction, and the
accused’s failure to appear was without justifiable cause, the court shall further
order the arrest of the accused.

Nevertheless, as mentioned above, regardless of the gravity of the offense,

promulgation of judgment in absentia is allowed under the Rules. The only
essential elements for its validity are: (a) that the judgment be recorded in the
criminal docket; and (b) that a copy thereof shall be served upon the, accused or
counsel.

2. But the Rules also provide measures to make promulgation in absentia a

formal and solemn act so that the absent accused, wherever he may be, can be
notified of the judgment rendered against him. As discussed earlier, the
sentence imposed by the trial court cannot be served in the absence of the
accused. Hence, all means of notification must be done to let the absent accused
know of the judgment of the court. And the means provided by the Rules are: (1)
the act of giving notice to all persons or the act of recording or registering the
judgment in the criminal docket (which Section 6 incidentally mentions first
showing its importance; and (2) the act of serving a copy thereof upon the
accused (at his last known address) or his counsel. In a scenario where the
whereabouts of the accused are unknown (as when he is at large), the recording
satisfies the requirement of notifying the accused of the decision wherever he
may be:
Thus, on May 5, 1998, although the second kind of notification was satisfied
when defense counsel Atty. Arias received a copy of the February 17, 1998
decision, the solemn and operative act of recording was not done, making the
promulgation in absentia invalid. This being so, the period to appeal did not
begin to run.

3. as regards the third argument, we agree with the Solicitor General that
matters of sufficiency of evidence may not be passed upon in the herein
proceedings. The instant petition assails the Court of Appeals’ decision dated
June 17, 1999 and its order dated September 28, 1999 both of which concern the
orders of the trial court dated June 22, 1998 and October 8, 1998, in essence
ruling that petitioner’s notice of appeal dated June 19, 1998 was filed out of time.
The petition is not directed against the February 17, 1998 decision of the trial
court which convicted petitioner on 26 counts of violation of Batas Pambansa
Blg. 22. Hence, this is not the proper time to rule on the merits of Criminal Cases
No. 85283-306/86064-65. There is, rather, a need to remand the matter to the
trial court for proper promulgation of its decision. Significantly, it is not what
petitioner describes as “repromulgation” since promulgation was not validly
made, and hence, as if not conducted. The requisites of the remedy of appeal
shall then apply from that point.