[G.R. No. 141638.

July 17, 2000]

SPS. PATERNO ESCUDERO, et al. vs. CA, et al.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated JUL 17 2000.
G.R. No. 141638 (Spouses Escudero, et al. vs. Court of Appeals,
Regional Trial Court, Branch 54, Lapu-Lapu City and People of the
Philippines.)
Petitioners are the accused in Criminal Case No. 012432-L for the
crime of Estafa punishable under paragraph 1, Article 316 of the
Revised Penal Code before Regional Trial Court, Branch 54, LapuLapu City. After the prosecution rested its case, the accused filed
a motion to dismiss on the ground that the crime charged had
already prescribed.
The alleged second deed of sale (Exh. C), which the prosecution
believes to have constituted the crime of estafa, was allegedly
executed on June 30, 1983 and duly registered with the Register
of Deeds on August 1, 1983. The complaint was filed with the
prosecutor on November 6, 1992 and the Information was filed
on March 22, 1983. The petitioners (accused therein) that under
Article 90 of the Revised Penal Code, crimes punishable by
arresto mayor prescribed in five years. Here, since the case was
instituted nine (9) years after the discovery of the crime, the
crime has already prescribed.
The prosecution opposed the motion stressing that the
prescriptive period in this case is to be determined on the basis of
the fine imposable. Considering that the fine is more than six
thousand pesos (P6,000.00), prescription, according to Article 90
in relation to Article 26 of the Revised Penal Code, is fifteen (15)
years. Thus, the crime charged has not yet prescribed.
In an Order dated 15 March 1999, the Regional Trial Court, acting
upon the motion, dismissed the case. However, upon motion for
reconsideration filed by the prosecution, the trial court in an order

dated 30 April 1999 set aside its previous order of dismissal and
set the case for trial for the presentation of the evidence for the
defense. The accused filed a motion for reconsideration of the
Order dated 30 April 1999. The trial court denied the motion. Not
satisfied, the accused filed a petition for certiorari under Rule 65
with the Court of Appeals.
On January 20, 2000, the Court of Appeals rendered a decision
denying the petition and affirming the ruling of the trial court that
prescription of the crime had not set in. Hence, the accused is
now before this Court through a petition for review on certiorari
under Rule 45.
The legal issues presented before this Court are the following:
1. Whether or not the crime of Estafa under
Paragraph 1, Article 316 of the Revised Penal
Code has already prescribed.
2. Whether or not the dismissal by the Regional
Trial Court constituted double jeopardy?
We hold in the negative on both issues.
ON THE FIRST ISSUE:
In essence, the issue of prescription of the crime hinges on the
correct interpretation of Article 90 in relation to Article 26 of the
Revised Penal Code. If the proper prescriptive period for the
crime of Estafa under paragraph 1, Article 316 of the Revised
Penal Code is five years from the discovery of the crime as
argued by the petitioners, the crime has already prescribed. On
the contrary, if the prescriptive period is fifteen (15) years as
ruled by the trial court and affirmed by the Court of Appeals, then
the crime charged has not yet prescribed.
To support their claim that the crime has prescribed, the
petitioners advanced three arguments:
One, the amount of the imposable fine is
indeterminate as the basis merely of
prosecution for such determination is
allegation
in
the
information
but

still
the
the
the

determination of the fine would still depend on

the evidence of the amount of damage which lies
on the discretion of the judge.
Two, the classification of fine under Article
26 RPC as afflictive, correctional or light penalty
is applicable only if the fine is imposed as single
or as an alternative penalty. However, the same
provision is silent when the fine is imposed as a
compound penalty, such as in the case at bar.
Petitioners submit there is no basis for applying
the classification of fine as it is only true if the
fine is imposed as single or alternative penalty.
Article 90 RPC is not applicable since the
classification of fine is the function of Article 26
RPC. Article 90 merely provides for the
prescription of the crime and not classification.
Three, the highest penalty mentioned in the
last paragraph of Article 90 could mean no other
than the "graver of the penalties." Imprisonment
is graver since it involves deprivation of one's
personal liberty in contrast with fine which may
be dispensed with where the accused is insolvent
except if the judgment itself provides for
subsidiary imprisonment for failure to pay fine
but even then said imprisonment could not
exceed the limitations imposed by law.1 Petition,
pp. 5-6;Rollo, pp. 12-13.
The contentions are without merit.
This Court notes that the penalty for Article 316 (2)2 Revised
Penal Code, Art. 316 provides, thus:
ART. 316. Other forms of swindling. - The penalty of arresto
mayor in its minimum and medium periods and fine of not less
than the value of the damage caused and not more than three
times such value, shall be imposed upon:
xxx

2. Any person who, knowing that real property is emcumbered,

shall dispose of the same, although such encumbrance be not
recorded.
x x x of the Revised Penal Code is the compound penalty of both
imprisonment and fine. Corollarily, the last paragraph of Article
903 Revised Penal Code, Art. 90 last paragraph (as amended by
R.A.. No. 4661 [1996]) provides, thus:
When the penalty fixed by law is compound one, the highest
penalty shall be made the basis of the application of the rules
contained in the first, second and third paragraph of this article.
of the Revised Penal Code provides the rule to be applied in
compound penalties. Accordingly, in determining the prescriptive
period of a crime punishable by both imprisonment and fine,
whichever penalty is the higher should be the basis in computing
the period of prosecution. The reason for this is that when the
penalty of imprisonment and fine is imposed in the compound, as
contradistinguished from a single or an alternative penalty,
neither penalty is subordinate to the other. In which case, the
higher penalty based on the classification under the Revised Penal
Code should be the basis for computing the prescription period of
the crime. Article 26 provides the classification, while article 90
indicates when such classification should be applied.
In People v. Crisostomo,4 5 SCRA 1048, 1053 (1962). we held
that the Revised Penal Code contains no provision which states
that a fine when imposed in conjunction with an imprisonment is
subordinate to the main penalty. In conjunction with
imprisonment, a fine is as much a principal penalty as the
imprisonment. Neither is subordinate to the other. On the
contrary, in the instant case, the fine is higher than the
imprisonment because it is afflictive in view of the amount
involved and, as stated heretofore, it is the basis for computation
to determine the prescriptive period. We conclude, therefore, that
where the Revised Penal Code provides a penalty consisting of
imprisonment and fine, whichever penalty is the higher, should be
the basis in computing the period of prescription.
Under Article 25 of the Revised Penal Code, the penalty of arresto
mayor is a correctional penalty. Under Article 26 of the Revised

Penal Code, Fine is considered an afflictive penalty if it exceeds

six thousand pesos (P6,000.00). The value of the damage caused
is nine thousand six hundred ninety-nine pesos) 9,695.00) which
represents the consideration of the prior sale. Considering that
the fine imposable is the higher penalty, it shall be the basis for
computing the prescriptive period of the crime. Thus, the proper
prescriptive period for the crime charges is fifteen (15) years.
The alleged Estafa was allegedly committed by the accusedpetitioners on 30 June 1983. The deed of sale was recorded with
the Register of Deeds on August 1, 1983. The criminal case was
instituted on November 6, 1992 upon the filing of the complaint
with the prosecutor.5 See Rules of Court, Section 1, last
paragraph, Rule 110; In Francisco v. Court of Appeals , 122 SCRA
483, this Court has ruled to the effect that the filing of a
complaint with the fiscal's office also interrupts the period of
prescription of the offenses charged. From August 1, 1983 to
November 6, 1992, only nine years had elapsed. Since the case
was filed within the fifteen-year prescriptive period, the crime
charged has not prescribed. Hence, the Court of Appeals
committed no reversible error.
ON THE SECOND ISSUE:
Petitioners argue that when the case was dismissed, the order of
the trial court to revive the case upon reconsideration such action
amounted to double jeopardy. In arguing this point, the
petitioners rely on Section 6, Rule 117 of the Rules of Court which
provides, thus:
Order sustaining the motion to quash not a
bar to another prosecution; exception. An order
sustaining the motion to quash is not a bar to
another prosecution for the same offense unless
the motion was based on the grounds specified
in Section 3, Subsection (f) and (h) of this rule.
The petitioners further contend that the grounds mentioned as
bar to another prosecution are that: first, the criminal action or
liability has been extinguished; and, second, the accused has
been previously convicted or in jeopardy. Moreover, they stress

that the rule on waiver to objection which are grounds of a

motion to quash does not apply when prescription becomes a
defense and extinguishes criminal liability.6 Citing Magat v.
People, 210 SCRA 21,32 (1991). The petitioners then conclude
that the dismissal of a case, even assuming arguendo, it is
erroneous, constitutes an acquittal which bars any review or
appeal or another jeopardy.
We are not persuaded.
The rule on double jeopardy has a settled meaning in this
jurisdiction. It means that when a person is charged with an
offense and the case is terminated either by acquittal or
conviction or in any other manner without the consent of the
accused, the latter cannot again be charged with the same or
identical offense.7 Melo v. People, 85 Phil. 766, 768 (1950). The
purpose is to set the effects of the first prosecution forever at
rest, assuring the accused that he shall not thereafter be
subjected to the danger and anxiety of a second charge against
him for the same offense.8 Caes v. Intermediate Appelleate
Court, 179 SCRA 54, 59-60 (1989).
It must be noted that an acquittal is different from a dismissal
notwithstanding the fact that there may be instances when an
order of dismissal of a criminal case amounts to an acquittal.9 In
People v. Salico, 84 Phil. 722, 732 (1949). In this case We
explained that the only case in which the word dismissal is
commonly but not correctly used, instead of the proper term of
acquittal, is when, after the prosecution has presented all its
evidence, the defendant moves for the dismissal and the court
dismisses the case on the ground that the evidence fails to show
beyond reasonable doubt that the defendant is guilty; for is such
case, the dismissal is in reality an acquittal because the case is
decided on the merits. However, in the case at bar, the dismissal
is not an acquittal because is was not based on the merits of the
case but on the ground that the crime charged has already
prescribed. Acquittal is always based on the merits, that is, the
defendant is acquitted because the evidence does not show
defendant's guilt beyond reasonable doubt; but dismissal does
not decide the case on the merits or that the defendants is not
guilty of the offense charged.10 Ibid.

In the case at bar, the dismissal did not constitute a first jeopardy
within the purview of the rule against double jeopardy because of
two reasons: first, the dismissal was upon motion of, and, hence,
with the consent of the accused; and second, the order of
dismissal was based on an erroneous finding of prescription of the
crime and not on the merits of the case.
It should be stressed that the Motion to Dismiss was filed by
petitioners. The dismissal and/or termination of the Estafa case
being with their voluntary and express consent, double jeopardy
has not, therefore, attached.11 People v. Gines, 197 SCRA 481
(1991); Que v. Cosico, 177 SCRA 410 (1989); People v. Jardin,
124 SCRA 167 (1983); People v. Pilpa, 79 SCRA 81 (1977); and
People v. Cuervo, 104 SCRA 312 (1981). There are only two
instances when double jeopardy attaches even if the dismissal of
a criminal case was with the express consent of the accused or
upon his motion. These are (i) insufficiency of evidence and (ii)
denial of the right to a speedy trial.12 People v. Ban, 239 SCRA
48, 55 (1994); People v. Quizada, 160 SCRA 516 (1988). None of
these exceptions is obtaining in the instant case.
The cases cited by the petitioners supporting the argument that
an erroneous acquittal bars any review or appeal or another
jeopardy are all premised on the fact that the erroneous
judgment of acquittal by the trial court was issued on the merit of
the case.
The motion to dismiss filed by the petitioners was based on the
ground of prescription and not on the alleged insufficiency of the
evidence against them. The trial court, then, did not dwell on the
merits of the case when it issued its Order dated 15 March 1999.
Even the trial court in reconsidering its previous order
emphasized in its Order dated 30 April 1999 that the motion to
dismiss dated January 8, 1999 was filed by the accused and that
the (trial) Court did-not resolve on the merits but on the alleged
prescription of the instant case.
In the case at bar, the order of dismissal was not yet final and
executory when the motion for reconsideration was filed by the
prosecution. The doctrine of double jeopardy does not attach until
the period for appeal has expired. The matter relative to the time

when jeopardy attaches is largely statutory and Section 7 of Rule

20 of the Rules of Court, in express and plain language, fixes
such time at the expiration of fifteen days.13 People v. Tamayo,
G.R. No. L-2233, April 25, 1950. Thus, when the trial court took
cognizance of that motion it still had jurisdiction to do so and the
action thereon was a continuation of the case, not an appeal
thereof or a new trial. In sum, there is no double jeopardy
because neither the proceeding in the trial court had terminated
with finality at the time when the motion for reconsideration was
filed so as to give rise to a first jeopardy nor was there a second
jeopardy in the form of an appeal or a new trial. But most
significantly, the order of dismissal was not based on the merits
of the case.
WHEREFORE, the petition is DENIED. Let this case be
REMANDED to the Regional Trial Court, Branch 54, Lapu-Lapu
City, for the presentation of the evidence for the defense.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court