Republic of the Philippines COURTOF APPEALS Cebu City NINETEENTH DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versusJuan Dela Cruz, Accused-Appellants, x--------------------------------------------------------------------/ CA GR. NO. 01221

ACCUSED-APPELLANTS, by counsel, unto this Honorable Appellate Court, most respectfully submit their memorandum of authorities as follows: PREFATORY STATEMENTS AND MATERIAL DATES The above-entitled case is appealed through a Petition for Review under Rule 42 of the Rules of Court. On May 21, 2010, the Honorable Appellate Court issued a Resolution directing the parties to their respective memoranda of authorities within fifteen (15) days from receipt of said resolution. Accused-appellants received their copy through their counsel on June 7, 2010.

they still have until June 22. . the Court had occasion to settle the uncertainly as regards the reckoning point of the 15-day period to appeal. Court of Appeals. In the case of PADUA. CA1. 2010 within which to submit this memorandum. WHETHER OR NOT THE SAME WOULD BIND THE ACCUSED-APPELLANTS ARGUMENTS/DISCUSSIONS Section 2. Rule 40 provides that an appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. x x x x x.. [A] party litigant may file his notice of appeal within 15 days from receipt of the Regional Trial Court’s decision or file it within 15 days from 1 GR No. We held that – . The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. ISSUE WHETHER OR NOT THE NOTICE OF APPEAL WAS FILED WITHIN THE ALLOWABLE REGLEMENTARY PERIOD. OR ASSUMING THE NOTICE OF APPEAL WAS INDEED FILED OUT OF TIME. x x x x x.Hence. 152150. 2008 2 . the Supreme Court held – “In the case of Neypes v. vs. . December 10. ET AL.

Rule petitioners for review from the Regional Trial Courts to the Court of Appeals. vs.receipt of the order (the “final order”) denying his motion for new trial or motion for reconsideration. the Court deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC. June 27. this “fresh period rule” shall apply to Rule 40 governing appeals from the Municipal Trial Trial Courts 42 to on the the Regional Court.” The question of whether or not the foregoing rule is applicable to the case where it was originally filed before the Municipal Trial Court. Said period is to be counted from receipt of the order dismissing the motion for new trial or motion for reconsideration. ET AL.2. Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The Supreme Court answered this question in the case of SUMAWAY. 2006 3 . . 142534. to be counted from receipt of the order denying the motion for 2 GR No. The new rule aims to regiment or make the appeal period uniform.. URBAN BANK. In order to standardize the appeal periods in the Rules and to afford litigants a fair opportunity to appeal their cases. . INC. which it held – “Henceforth.

2007. accused-appellants still has up to March 19. Gako. the Motion for Reconsideration to the judgment of conviction was The order of denial was received by then counsel of record Atty. accused-appellants still has up to July 11. 2007. applying the “fresh period rule”. filed an urgent motion to recall order denying their motion for reconsideration. 2007. 2007. 2007. the judgment of conviction was promulgated on June 26. accused-appellants still have up to December 21. Again. But since accused-appellants timely filed on June 29. if we will based on the date when the accused-appellants received their copy of the order. 2007 within which to file a Notice of Appeal or apply for probation. Applying the rule that the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. 2008. 2007. then they still have up to December 29. 2007 their Motion for Reconsideration to the judgment of conviction. This computation is again based on the “fresh period rule”. the 15-day period was once again interrupted. The urgent motion to recall was denied on February 6. Jr. 2008. Bernardito Florido on December 6. Now. On the part of the accused-appellants. But since on December 12. accused-appellant filed Notice of Appeal. Florido received his copy. they received their copy on December 14. 2007. 2008 within which to file a notice of appeal or apply for probation. 4 . 2008 which the accused-appellants received the order of the same on March 4. Exactly on March 14. accused-appellants through their counsel Atty. motion for reconsideration (whether full or partial) or any final order or resolution. denied. Ireneo L. On November 22. If we will based it on the date when trial.” In this appealed case. the running of the 15-day period was interrupted.

Nothing is more settled than the rule that the mistake of a counsel binds the client. he was once also a professor of law in one of the leading universities in Cebu. Even law students know this rule.Clearly. GR No. March 18. Accused-Appellants former counsel. With this background. before he became a judge. the same would not bind the accused-appellants since there was gross or palpable negligence committed by their previous lawyer. 1991 5 . accused-appellants’ notice of appeal was filed five (5) days ahead from the deadline. the Honorable Appellate Court must step in and accord what is available relief to the accused-appellants. The 15-day prescribed period to appeal is a basic procedure. In fact. Thus. Ireneo Gako is a newly retired Regional Trial Court Judge in Cebu City. he was the former City Prosecutor of Lapulapu City. It is only in case of gross or palpable negligence of counsel when the courts must step in and accord relief to a client who suffered thereby3. Not only that. he is expected to be more familiar of the law. Hence. Gako to observe this very basic rule is a clear example of gross or palpable negligence committed by a lawyer. CA. As can be seen on the dates mentioned above. the MTCC as well as the RTC-27 committed mistakes when both courts ruled that accused-appellants’ right to appeal their case or to apply for probation has already lapsed. 94457. Assuming that the Notice of Appeal was indeed filed out of time. substantially and procedurally. the failure of Atty. Atty. 3 Legarda vs.

because they were therein deprived of their day in court and divested of their property without due process of law. He should give adequate attention. in holding that the counsel's blunder in procedure is an exception to the rule that the client is bound by the mistakes of counsel. They acknowledge that. Judge Dulay5.As member of the Philippine Bar he owes complete fidelity to the cause of his client. We are impressed with petitioner's contentions. that the judgments rendered against them by the respondent court are null and void. This is the reason why a practicing lawyer should accept only so many cases he can afford to handle. through the gross ignorance. 4 5 ibid 158 SCRA 69 (1988) 6 . clients are bound by the mistake of their counsel. In Escudero vs. then he is not true to his oath as a lawyer4. If he should do any less. while as a rule. made the following disquisition: Petitioners contend. he should undertake the task with dedication and care. as their trial counsel's blunder in procedure and gross ignorance of existing jurisprudence changed their cause of action and violated their substantial rights. mistake and negligence of their previous counsel. care and time to his cases. through their new counsel. And once he agrees to handle a case. the rule should not be applied automatically to their case. the Supreme Court.

Adherence to the general rule would. November 29. In the case of Apex Mining Inc.Ordinarily. the rule may be relaxed. the Supreme Court said. 133750. result in the outright deprivation of their property through a technicality. a special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for failure to file a timely petition for review on certiorari (appeal) under Rule 45 of the Rules. xxx xxx xxx While this Court is cognizant of the rule that. thus – “A client may reasonably expect that his counsel will make good his representations and has the right to expect that his lawyer will protect his interests during the trial of his case. in accordance with the facts and circumstances of each case. exceptions may be made to such rule. CA6. Where. a client will suffer the consequences of the negligence. vs. in the instant case. For the general employment of an attorney to prosecute or defend a case or proceeding ordinarily vests in a plaintiff’s attorney the implied authority to take 6 GR No. however. generally. 1999 7 . in the interest of justice and equity. the application of the rule will result in a manifest failure or miscarriage of justice. mistake or lack of competence of his counsel.

In the case of Sibal vs." In this present case. accused-appellants’ former counsel. thus – xxxxx “In all criminal prosecutions. Atty. the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant. failed to make good of his representations. People7. 2008 8 . Gako. Court of Appeals27 where we ruled that an appeal is an essential part of our judicial system and trial courts are advised to proceed with caution so as not to deprive a party of the right to appeal and instructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause. freed from the constraints of technicalities. the accused shall have the right to appeal in the manner prescribed by law. however. and in a defendant’s attorney. 161070. once it is granted by law.all steps or do all acts necessary or incidental to the regular and orderly prosecution and management of the suit. Accusedappellants expected him that he will do what was good for them at that time. the Supreme Court held. April 14. The importance and real purpose of the remedy of appeal has been emphasized in Castro v. its 7 GR No. While this right is statutory.

liberty. Milan. the Supreme Court citing the case of Sibal vs. (c) the merits of the case. April 5. Thus. (b) the existence of special or compelling circumstances. Inc. 2010 9 . (e) a lack of any showing that the review sought is merely frivolous and dilatory. thus – xxxxx However. which would result in technicalities tend to frustrate GR No.8. that 8 Their strict and rigid rather than promote application. People held. this court has relaxed this rule in order to serve substantial justice considering (a) matters of life. honor or property.” xxxxx In the recent case of PCI Leasing and Finance. rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. 151215. Invariably. et al.suppression would be a violation of due process. (d) a cause not entirely attributable to the fault or negligence of the party favoured by the suspension of the rules. the importance of finding out whether petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at all attributed to petitioner. vs. a right guaranteed by the Constitution. and (f) the other party will not be unjustly prejudiced thereby.

the Supreme Court held. The dispensation technicalities. Hence. vs. Court litigations are primarily for the search of truth. It has been 9 of justice and vindication of legitimate grievances should not be barred by GR No. 143783.. Banco Filipino Savings and Morgage Bank9. thus xxxxx The fundamental purpose of procedural rules is to afford each litigant every opportunity to present evidence in their behalf in order that substantial justice is achieved. 2002 10 . Even the Rules of Court reflects this principle. xxxxx In the case of Sarraga.substantial justice. and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth. This policy applies with equal force in case of appeals. in cases where a party was denied this right. December 9. et al. we have relaxed the stringent application of procedural rules in order to allow a party the chance to be heard. must always be eschewed. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final.

the Supreme Court held. may even stay the dismissal of appeals grounded merely on technicalities. technical sense. in the exercise of its equity jurisdiction. "x x x. thus xxxxx x x x Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer. for they are adopted to help secure. not override. especially in this case where petitioners’ appeal appears prima facie worthy of the CA’s full consideration on the merits. Court of Appeals10. substantial justice.consistently held that the dismissal of appeal on purely technical grounds is frowned upon. as any other procedural 10 320 Phil 456 (1995) 11 . this Court. Verily. dismissal of appeals purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid." xxxxx In the case of Aguilar vs. and thereby defeat their very aims. The established jurisprudence holds: xxxx The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding upon the client.

When in the circumstances of each case the rule desert its proper office as an aid to justice and becomes its great hindrance and chief enemy.rule. ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client. is to serve as an instrument to advance the ends of justice. its rigors must be relaxed to admit exceptions thereto and to prevent a manifest miscarriage of justice. xxxx The court has the power to except a particular case from the operation of the rule whenever the purposes of justice require it. the litigation may be reopened to give the client another chance to present his case. the defendant in order to secure a new trial must satisfy the court that he has a good defense and that the acquittal would in all probability have followed the introduction of the omitted evidence. who otherwise has a good cause. is prejudiced and denied his day in court. In a criminal proceeding. xxxx If the incompetence. What should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or 12 . presented where because certain of evidence counsel's was error not or incompetence.

Other just and equitable remedies are likewise prayed for. honor or property on mere technicalities. accused-appellants’ Hence. June 17. Clearly. 12345 13 . it is respectfully prayed of this Honorable Appellate Court to reverse the order of the lower court denying the Notice of Appeal of the accused-appellants by allowing the accused-appellants to appeal their case to the Regional Trial Court. Angtud Collaborating Counsel for the Accused-Appellants Keppel Building. the former counsel was guilty of gross negligence. or in the alternative. 2010. xxxxx The foregoing jurisprudence falls squarely in this instant petition of the accused-appellants.defense rather than for him to lose life. palpable mistake committed by said former counsel should not in PRAYER WHEREFORE. Mandaue City. liberty. Flora Mae P. to allow the accused-appellants to apply for probation. Ayala Business Park Cebu City Roll No. Philippines. (for Cebu City). any way bind the accused-appellants.

dated _____________ 14 . dated ____________ Atty. 23456. Makati Registry Receipt No. Makati City 1229 Registry Receipt No.. 3456789.IBP No. II – 0005972 MCLE Compliance No. Cebu Chapter. January 4. ____________. Gongie Counsel for Private Respondent RCBC Building Makati City. _____________. 2010 MCLE Compliance No. III – 0000129 Copy Furnished: The Honorable City Prosecutor (personally served) Lapulapu City Prosecutor’s Office Lapulapu City Received By _________________ on _____________ The Clerk of Court (personally served) RTC Branch 27 Lapulapu City Received By __________________ on ______________ The Solicitor General Office of the Solicitor General #134 Amorsolo Street Legaspi Village. 2010 PTR No. Mandaue City. April 15.

Flora Mae P. Juan Tamad of legal age. 15 . Cebu City. 1229 Atty. Lapulapu City The Solicitor General Office of the Solicitor General #134 Amorsolo Street Legaspi Village. Proof of service and registry receipt of the foregoing mailing can be clearly seen on page 14 of the pleading.. Makati City Makati City 2. I am at present the clerk/messenger of the ANGTUD’S LAW OFFICE located at Keppel Building. a copy of the same was sent through registered mail to the Solicitor General and due to distance and impracticability to effect personal service. and a resident of Mandaue City. Lapulapu City. Filipino. 2010.. Makati City. single.... Philippines.)SS. I served through personal service and/or registered mail copies of this Memorandum to: The Honorable City Prosecutor (personally served) Lapulapu City Prosecutor’s Office. Lapulapu City The Clerk of Court (personally served) RTC Branch 27 Mandaue City. Cebu. Gongie Counsel for Private Respondent RCBC Building. do hereby depose and state: THAT – 1. On June 15... AFFIDAVIT OF SERVICE/MAILING I... after being sworn in accordance with law.EXPLANATION Copy of this Memorandum is personally served to the Lapulapu City Prosecutor’s Office and RTC-27.. Angtud Republic of the Philippines) City of Mandaue . Ayala Business Park. Likewise.

Philippines. I have hereunto set my hand this _____ day of June 2010. at Mandaue City. __ Series of 2010 16 . Doc. 0623473095.IN WITNESS WHEREOF. __ Book No. No. Juan Tamad Affiant SSS ID No. __ Page No. at Mandaue City. Affiant exhibited to his SSS ID No. Philippines. 0623473095 SUBSCRIBED AND SWORN to before me this ____ day of June 2010.

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