Consti II case digest:ROBERTO P. ALMARIO, petitioner, vs. COURT OF APPEALS

Facts:

Petitioner is one of the accused in Criminal Case No. 91-6761, for estafa thru falsification of public document, and Criminal Case No. 91-6762, for estafa, with respondent RCBC as the offended party in both cases.

The hearing was reset several times due to the trial judge was elevated to higher court and  lack of proof of notice to the accused. The hearing was started October 1992  on September 1995, the complainant failed to appear in spite due notice  moved that the case against the latter be dismissed for failure to prosecute and considering that accused is entitled to a speedy trial.

The motion was granted by the RTC. A motion for reconsideration was raised and the court granted and reversed its first decision on dismissing the case against Roberto Almario.

A motion for reconsideration was raised by the defendant but rejected. Upon rejection they seek for certiorari in the CA they contend that reversal of the decision was a violation of the doctrine of double jeopardy. After trial the CA denied the petition for lack of merit. Hence this petition.

ISSUE:

W/N right of the accused against double jeopardy have been violated.

Ruling:

Section 7, Rule 117 of the Revised Rules of Court provides:

SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

x x x

Clearly, jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.^[8]

In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court.  It was made at the instance of the accused before the trial court, and with his express consent.  Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy.  However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.^[9] Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused’s right to speedy trial.^[10]

Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused, herein petitioner, resulted.  For it must be recalled that in the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case.^[11] Both the trial court and the appellate court noted that after pre-trial of petitioner’s case was terminated on October 21, 1994, continuous trial was set in the months of December 1994, and January and February of 1995.  The scheduled hearings, however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala.

Records show that on June 21, 1995, hearing was postponed for lack of proof of notice to the accused and their counsel. The hearing on July 17, 1995, was postponed upon motion of the private prosecutor without objection from petitioner’s counsel.  The hearing set on July 24, 1995 was reset, despite the presence of petitioner and his counsel, because of lack of proof of service of notice to co-accused Dante Duldulao and the spouses Susencio and Guillerma Cruz.^[12]

There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur with the conclusion reached by the Court of Appeals that petitioner’s right to speedy trial had not been infringed.  Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal.

It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order was reconsidered seasonably.^[16] For as petitioner’s right to speedy trial was not transgressed, this exception to the fifth element of double jeopardy – that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused – was not met. 

WHEREFORE, the resolutions of the Court of Appeals in CA-G.R. No. SP-42312, dated November 21, 1996 and January 7, 1997, which upheld the orders of the Regional Trial Court of Makati, Branch 139, in Criminal Cases Nos. 91-6761-62, are hereby AFFIRMED.  Costs against petitioner.