Lecture 2 – finals

Rue 121
New Trial or Reconsideration

Q: Before, we had a rule where we discussed about the reopening of a case. Where lies the difference between a
motion for new trial/reconsideration to a reopening of a case? This is a very important rule.
When should you file and motion for new trial or reconsideration and when should the reopening of the case be
filed?
A: motion for new trial: when the court has already rendered judgment, it is filed before the lapse of the 15-day
period or before the finality of judgment.
Reopening of a case: it is file before the court renders final judgment, either party can do that even the court –
moto propio

There are 4 instances when the judgment of conviction has become final: you might think than in the finality, there
is a lapse of the 15-day period to appeal.
1. When the accused, even before the lapse of the 15-day period, voluntarily commenced to serve his
sentence. He could no longer file a motion for new trial the following day because in that case the
decision is already final.
2. (And 3 not given)

Q: another distinction? The requirement for new trial/reconsideration?

A: new trial – must only be filed with the consent of the accused or it can be done motu propio by the court but
always with the consent of the accused because that would place the accused in double jeopardy.

Q: is that a requirement in reopening?

A: no.

JS: so those are the 2 major differences between new trial/reconsideration and reopening of the case. So section 1
is clear: Filing a motion for new trial/reconsideration must always be with the consent of the accused. Meaning to
say, it’s the accused filing the same or it can also be done by the court motu propio but always with the consent of
the accused but that consent of the accused is not needed for reopening of the case because it can be at the
instance of both the prosecution and the accused – we are talking about the reopening of the case which must be
done before the court renders judgment.

Q: if the filing of a new trial/reconsideration requires always the consent accused, would that give us the
conclusion that the prosecution therefor is not allowed to file new trial or reconsideration?
A: the fiscal is not allowed to file the motion although there are certain exceptions emphasized in rule 122.

JS: pero by virtue of Rule 121, it gives us the impression that only the accused can file a motion for new
trial/reconsideration because even the court can do that only with the consent of the accused. Why? Because if
we allow the prosecution to do that, it will place the accused in double jeopardy, of course subject to exceptions
which we will discuss when we reach Rule 122.

Q: give me the period.

A: before the judgment became final.

JS: it is not quite accurate to say within 15-day period to appeal. So before the judgment became final is most
accurate because there are 4 instances when a judgment becomes final

Q: what are the 2 grounds for new trial enumerated by the rules?
A: Section 2. Grounds for a new trial. — The court shall grant a new trial on any of the following grounds:
a. The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed
during the trial;
 b. The new and material evidence has been discovered which the accused could not with reasonable diligence
have discovered and produced at the trial and which if introduced and admitted would probably change the
judgment.

JS: for (b) there are 3 requisites, I’m sure of that, you memorize - on the ground of newly discovered evidence:
1. Newly discovered
2. Not known by the accused during trial
3. It would probably alter the decision of the court.

Q: what is the sole ground for reconsideration?

A: Section 3. Ground for reconsideration. — The court shall grant reconsideration on the ground of errors of law or
fact in the judgment, which requires no further proceedings.

JS: these are committed by the court in rendering its judgment. The prosecution can already file a motion for
reconsideration in certain instances. Example, when there is no award of civil liability but yet the decision
mentioned that there is civil liability because it was proven by the prosecution by preponderance of evidence. It
will not affect the criminal aspect of the case because the motion for reconsideration is anchored on the civil
aspect of the case or when the court failed to determine whether there was a corresponding civil liability
precisely, I tell you, when we render our decision we must be particular it was simply because the prosecution
was not able to prove the case beyond reasonable ground, or the decision of the court was because the accused
did not commit the crime at all – because this is for the purpose of civil liability. In that instance, the prosecution
can file a motion for reconsideration – not on the criminal aspect of the case but on civil aspect because the
court failed to award the civil liability even when the prosecution was able to prove it.

JS: before we proceed, I would like to emphasize that unlike in civil procedure where we apply the pro-forma rule;
that is not applied in criminal cases. Pro-forma means that when you file a motion for reconsideration and then
you merely reiterated your arguments which are already considered by the court. That will render your motion
pro-forma and that will be denied by the court. Effect is, it will not toll the running of the period for appeal. That
is also to protect the interest of the accused. Ok clear?

Q: of course, the motion must be in what form?

A: Section 4. Form of motion and notice to the prosecutor. — The motion for a new trial or reconsideration shall be
in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence, the motion
must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly
authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for
new trial or reconsideration shall be given to the prosecutor.

JS: ok in writing, state the ground upon which your motion is anchored and with notification to the prosecutor. In
fact there must be a notice of hearing.

Q: is there a need that your motion must contain and affidavit of merit? Particularly when your motion is anchored
for new trial on the ground of newly discovered evidence.
A: No. this is another difference between civil and criminal. In civil cases, there is a need for affidavit of merit. In
criminal cases, no.

JS: why? Because if it is based in newly discovered evidence, we allow the introduction of witnesses and the
grounds of your motion can best be testified by the witnesses. The affidavit of merit, my dear students, you
must state there the grounds upon which your motion is anchored.

Q: when you file a motion for new trial, what should your motion state aside from the motion itself?
A: if it is grounded on newly discovered evidences, it should be supported by affidavit of witnesses or duly
authenticated document that would support the motion.
Q: what about in the motion for reconsideration? Is that a requirement in motion for reconsideration?
A: no but you must distinctly point out the errors or irregularity which were committed by the court when it
rendered its decision.

Q: give examples of such error of law or irregularity which might warrant a new trial because those substantially
affected the rights of the accused.
A: (1) when the accused in charged with an offense which the conduct of preliminary investigation is a right but the
accused was denied of the right to preliminary investigation; (2) the court did not grant the accused of ample
time to prepare for trial; (3) accused was not assisted by the counsel of his choice but the court insisted PAO.

Q: we talked about newly discovered evidence not known during trial which if presented will alter the results of
the case. What about if these will be recantations of eye witnesses of the prosecution, could it be a good ground
for new trial? Although the law disfavors recantations, it is given less weight by the SC.
A: No.

JS: No. like what I said, recantations of witnesses are disfavored. Existing jurisprudence and decisions of the court –
the witnesses are mere corroborative witnesses not a ground for new trial. Because there could be instances
that in recantation, there is always money involved. But there is an exception, while recantation of prosecution
witnesses is not a ground for new trial however when the court allows the same, it will be valid. Because there
is only 1 eyewitness of the prosecution and then he recanted which affected the prosecution’s case and
rendered it doubtful. (People vs. Soriano)

JS: I explained to you the grounds, what should be accompanied so you would be very particular on which ground
is your motion new trial is anchored. If it is on newly discovered evidence, see to it that you must support this
with affidavits of witnesses and pertinent documents to support the motion. If it based on error or law or
irregularity, you must distinctly set forth what is the error of law or irregularity upon which your motion for new
trial is based. The same holds true, likewise, on a motion for reconsideration based on error or irregularity, you
must set forth what is that error of law or facts which the court committed in rendering the assailed decision.
Clear?

JS: important, it is only in a motion for new trial that the court allows the presentation of new witnesses; in a
motion for reconsideration it is not allowed.

Q: what is the effect if the court grants new trial/reconsideration?

A: Section 6. Effects of granting a new trial or reconsideration. — The effects of granting a new trial or
reconsideration are the following:
a. When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all
proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest
of justice, allow the introduction of additional evidence.
b. When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall
stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to
be introduced shall be taken and considered together with the evidence already in the record.
c. In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or
vacated and a new judgment rendered accordingly.

JS: in a new trial, where you have newly discovered evidences, your ultimate objective is for acquittal of the
accused. That is precisely the reason why we allow the introduction of witnesses and that the previous decision is
vacated, set aside and a new decision is now acquitting the accused.

Q: in a motion for reconsideration, is the judgment vacated or set aside?

A: It depends. If it is a question of law, the judgment rendered is set aside and a new judgment will be rendered. If
its question of fact modification to the judgment in consonance to the newly presented facts will be rendered
JS: the filing of a motion for new trial/reconsideration will toll or suspend the running of the prescriptive period.
That is why very important that in criminal cases we do not apply the pro-forma rule kasi in civil procedure,
when the motion turned out to be pro-forma, because these are merely reiterations of previous arguments,
sorry that will not stop the running of the prescriptive period to appeal. But since that is not applied in criminal
cases, the mere filing, I repeat, of the motion now tolls the running of the prescriptive period so that when it is
denied you still have the fresh period rule of 15 days now to file your appeal.

RULE 122
Appeal

Q: this a decision of the first level court, you want to appeal the conviction to the RTC, what should you do? What
is your remedy?
A: a notice of appeal should be filed in the court which rendered the decision – that is the first level court within 15
days from promulgation.

Q: RTC in the exercise of its original jurisdiction, you are aggrieved by the decision of the RTC, what is your
remedy?
A: notice of appeal before the RTC to the CA

Q: what about if you it is purely a question of law? Would you file a notice of appeal?
A: it must be a review on certiorari under rule 45 before the SC.

JS: I repeat, question of fact and law – file a notice of appeal before RTC to the CA, but if your appeal is only
premised on pure question of Law, you go to the SC via petition for review on certiorari under Rule 45.

JS: what about (kim’s phone, nahulog) sorry. Oh. My. Goodness.
Class: hahahahaaha
JS: would that affect your ano, the cellphone?
Ms. Osias: No sir.
JS: No because there is a cover – there is no cover.
Class: ahahahahahaha
JS: Well, I should not be blamed for that. Ok do you think it is still running?
Class: yes sir
JS: OK

JS: what about if it is the exercise of the RTC in its appellate jurisdiction?
A: a petition for review under Rule 42.

JS: when you talk about appellate, the decision comes originally from the first level court. Tapos you appeal that by
notice of appeal to the RTC, you were not contented with the decision because it was affirmed, you want to go
to the CA, you do that by means of petition for review, not certiorari, only petition for review under rule 42 of
the 1997 Rules of Civil Procedure. Because that is supposed to be the remedy if you want to appeal a decision of
RTC in the exercise of its appellate jurisdiction

Q: the court convicted the accused and meted on the accused the penalty of perpetua, or because it was a special
law – life imprisonment. (Don’t use life imprisonment for revised penal code, the term there is perpetua; for
special law he term is life imprisonment) do you have to appeal? Do you have to file a notice of appeal?
A: yes.

JS: yes, that is a misinterpretation. Many lawyers are victims of this. Many cases in Basey, all appeals were
dismissed there was no notice of appeal, by the former judge, not me. Because I noticed before since there was
an abolition of death penalty, diba it reduced to perpetua?, what they did there is to bring the records
immediately to the CA. That’s wrong; there should be a notice of appeal. Because it is only when the court
 meted out death penalty when there is an automatic appeal. Death penalty lang. So as of now since there is no
death penalty, all decisions, you always do that via a notice of appeal. And did you know, we presume that there
is death penalty, automatic review to the CA – People vs. Mateo. Diba dapat before SC now CA na tayo. If you
are not contented by the decision of the CA, it is the time now when you can go the SC via a notice of appeal.

JS: Diba automatic review to the court of appeals. You can go the SC and this is where the law requires you to file a
notice of appeal from the CA to the SC. Yun. Only in death penalty. In other cases, you file a notice of appeal
from RTC to CA, you are aggrieved by the decision, you can go now to the SC via petition for review on certiorari
under Rule 45 along with an appeal on pure question of law of a decision of RTC in the exercise of its original
jurisdiction. Kasi pag appellate, your remedy is petition for review under Rule 42.

JS: and now, under that circular (attached in the book of Regalado) whether the penalty is death, perpetua, life
imprisonment – there is always no eligibility for parole pursuant to the Indeterminate Sentence Law.

Lecture 3 – finals

Rule 122
Appeal

JS: if you are talking about appeals on criminal cases, very basic, it talks about conviction. Because there could be
no appeal on acquittal. Now we are discussing SC Administrative Circular No. 00-5-03, by way of supplement to
Rule 122 on the 2000 Revised Rules on Criminal Procedure.

Q: from the first level court to the RTC you that by?
A: Notice of appeal or ordinary appeal.

JS: the notice of appeal should be filed in the court which rendered the decision

Q: upon receipt of the notice of appeal of the clerk of court of the first level court, within 5 days, what is his (clerk)
duty?
A: within 5 days, upon perfection of the appeal, the clerk of the first level court is duty-bound to transmit all the
records of the case to the appellate court (RTC)

Q: upon receipt of the clerk of RTC of the records, what is duty of the clerk?
A: the clerk of court will issue a notice to both parties. In the notice, there must an order requiring the parties to
submit their respective memorandum within 15 days from receipt of the notice.

JS: actually in civil cases, that is the same procedure. If no memorandum is filed, particularly by the appellant that
will cause the dismissal of the case. But that is in civil cases. The rule just says that the clerk of court will send da
notice to both parties that the records are already at the RTC further requiring them to submit their
memorandum within 15 days from receipt of the notice. After which the case is deemed submitted.

Q: what about if this is a decision of the RTC. What is the mode of appeal?
A: an ordinary notice of appeal should be filed in that particular court

JS: when you talk about ordinary appeal that means filing of a notice of appeal. But remember there has to be
payment also of appeal fees unless you are a pauper litigant, assisted by the PAO – in such case there is no
appeal fees. But in all other case, there must be payment of appeal fees together with the notice of appeal, my
dear students.

JS: in the RTC, you have to distinguish whether the decision subject of the appeal was decided by the RTC in the
exercise of its original jurisdiction. If it is original jurisdiction, you do that by filing an ordinary notice of appeal.
Q: what about if this is in the exercise of its appellate jurisdiction? Meaning to say this is a decision emanating from
the first level court, it was appealed to the RTC – still affirmed. You are not contented with the decision, you
want to go the CA. definitely that cannot be done by an ordinary appeal by means of filing a notice of appeal
because under our Rules and pursuant to the 1997 Rules of Civil Procedure, the appellant should do what?
A: petition for review under rule 42.

JS: don’t call it certiorari. Petition lang for review under rule 42. I repeat, if there is a question on the mode of
appeal from the RTC to CA, you distinguish whether the exercise of its original jurisdiction or whether it’s the
exercise of its appellate jurisdiction. If original jurisdiction, only ordinary appeal by way of notice of appeal; but if
it is appellate jurisdiction, you do that by means of a petition for review under rule 42 of the 1997 Rules of Civil
Procedure. It is not mentioned, however, by Regalado, not unless your appeal is on pure question of law and
that is in the exercise of the original jurisdiction of the RTC, you can go directly to the SC via a petition for review
on certiorari under Rule 45.

JS: so if you appeal, I repeat, in the exercise of RTC in its original jurisdiction on pure question of law, you are
allowed to go directly to the SC via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure. Clear tayo? There is a difference between 42 and 45. 42 is called petition for review, 45 is petition for
review on certiorari, 65 is petition for certiorari only. That’s how you call your petitions.

Q: we presume there is death penalty. The RTC imposed death penalty. Do you have to file a notice of appeal?
A: no. there will be automatic appeal.

Q: but would that be applied to perpetua/life imprisonment?

A: no because you still have to file a notice of appeal. The Rule is very clear that there can only be automatic
review on death penalty. But have no more death penalty so meaning to say, there is no more automatic review.
So no death penalty, only perpetua/life imprisonment with no illegibility for parole.

Q: this is perpetua/life imprisonment. Notice of appeal to CA by the accused, convicted. Still affirmed by the CA.
you want to go the SC, what is your mode?
A: notice of appeal.

JS: the rule is very clear, that is notice of appeal. All other appeals, you do that be notice of appeal on certiorari
under Rule 45. Except lang conviction of perpetua/life imprisonment. Even if it was done via an ordinary notice
of appeal to the CA, it is affirmed by CA, you want to go the SC, it is still by notice of appeal.

Q: in cases when the CA affirmed the conviction of death penalty of the accused. What should the CA do?
Remember that is automatic review from RTC to CA, that’s People vs. Mateo, death penalty was affirmed by CA.
what should the CA do as far as its decision affirming the death penalty?
A: it will definitely render a decision but there will be no entry of judgment rather it should be submitted directly
to SC.

JS: take note. In cases when the CA will affirm a conviction of death penalty, it will not issue and an entry of
judgment but rather it will certify the case and elevate and transmit the records of the case to the SC. Parang
automatic parin under the provisions of this particular Rule. Clear tayo?

JS: I repeat for the last time:

 From the first level to the RTC – that is by way of ordinary appeal. If you meet the word ordinary appeal, that
is by filing a notice of appeal within 15 days from promulgation. Remember, in filing a motion for
reconsideration you have the fresh period rule – you are given the original 15-day period to do your appeal
upon receipt of the order denying your motion for reconsideration.
 If this is from the RTC, you have to qualify whether it is an exercise of its original or appellate jurisdiction.
Unless it is purely on question of law, you have to go the SC via petition for review on certiorari under Rule 45.
 You do that by ordinary appeal, that is notice of appeal, of course in the RTC to the CA. But if it is in the
exercise of its appellate jurisdiction, you do that via petition for review under Rule 42 of the of the 1997 Rules
of Civil Procedure.
 If this is death penalty, no need for notice of appeal because there is automatic review.
 If it is Perpetua/life imprisonment, you still have to file a notice of appeal. If you are not yet content with the
decision of the appellate court, you can still go the SC via a notice of appeal.
 All other decisions of the CA shall be coursed to the SC via a petition for review on certiorari under Rule 45.
 If this is death penalty affirmed by the CA, the CA will not issue an entry of judgment, rather it will certify the
case and transmit the records to the SC. Parang it is still automatic review, so to speak, from the CA to SC only
when what is involved is death penalty. An entry of judgment presupposes that the case is already final and
executory.

Q: can both party, the persecution and the accused, appeal the case?
A: yes, both parties can appeal but there is a qualification. Either party can appeal as long as it will not place the
accused in double jeopardy.

JS: On the part of the persecution, it must be done only by the Office Solicitor General in behalf of the People of
the Philippines. Although there are certain instances where, like example the case is filed by the prosecutor to
RTC, we have 10 days to determine the existence of probable cause for the purpose of issuing the warrant of
arrest and if you are not content, the court (RTC) will require the prosecutor to submit additional evidences yet
the case was dismissed. In such case, the prosecutor can appeal the case through the OSG.

JS: the prosecution can appeal as long as the accused is not place in double jeopardy. I repeat, the 15-day period to
appeal is gauge from the promulgation, not from the receipt of the judgment. If there is a timely motion for
reconsideration, the appeal period is tolled until after the court issues an order denying but you’re given the
fresh period of 15 days both in criminal and civil cases. We are using the decision of the SC in the case of Neypes.

Q: enumerate the instances when an appeal can be done but the accused is not placed on double jeopardy as a
condition sine qua non to the prosecution’s right to appeal in the context Rules on Criminal Procedure.
Answer:
1. If that is based upon the motion or based upon the express consent of the accused. (Like when the accused
files a motion to quash (before arraignment) or motion to dismiss (after arraignment). When the motion to
quash was granted by the court, the prosecution can appeal there is no double jeopardy because the case was
dismissed upon the motion of the accused)
2. When that is not an acquittal or that is an appeal based on the decision not rendered by the court after trial
on the merits of the case (example: in the determination of probable cause, the court found out there is no
probable cause. The prosecution can appeal)
3. If the appeal involves pure question of law. Because if that is pure question of law and that is granted, the
case is remanded back to the trial court for further trial or of trial based on the merits of the case.
4. The civil aspect of the case. If the court rendered the decision, but failed to make an express finding on the
civil liability of the accused, you can file a motion for reconsideration. It the motion is denied, you can go the
appellate court but only on the civil liability. In fact the appeal on the civil aspect will not affect the criminal
aspect of the case.

JS: that’s why I told you when the court renders its judgment it should determine whether it is based on proof
beyond reasonable doubt, because we can still award civil liability; or on the fact that the accused did not
committed the crime at all, if that is the basis of the acquittal, it will carry with it the extinguishment of the civil
liability.

Q: when you do a notice of appeal, what is the requirement? You are the accused now and you are represented by
a lawyer then you were convicted, you want to file a notice of appeal, aside from filing what is the other
procedural requirement that should be part of your notice appeal?
A: as part of due process, there must be a notice to the prosecution. Serve a copy of notice of appeal to the
adverse party.

Q: what is the mode of serving Notice of appeal?

A: made by personal service, if not possible could be by registered mail to the address of the adverse party.
(office, residence of last know). If made via service mail, you must explain it on your pleading why you resorted
to registered mail because the preferred service is personal.

Q: under section 8 or Rule 13, if personal or registered mail is not practicable because of the whereabouts of the
adverse party is unknown, what is the remedy?
A: notify the clerk of court at that point.

JS: in section 7, personal and registered mail service is not possible you resort to 8. We call it substituted service.
You do that via the clerk of the court where you are filing the notice of appeal.

JS: registered mail – is via the post office, it is deemed filed at the date you posted it at the post office. If it is a
private courier, it is deemed filed upon actual receipt.

Q: is failure to serve notice fatal to the appeal?

A: No. Appellee may waive his right to notice.

Q: the appellee did not waive his right but unfortunately the lawyer failed to furnish the adverse party of the copy
of the notice of the appeal. Would it be fatal – that is the court will deny the appeal?
A: as long as the appeal was filed on time, it may still be considered by the court even there is no proof of service,
and when the interest of justice so requires.

JS: the failure to serve, as cited by the SC in several cases, may not be fatal because it may be granted by the court
when the interest of justice so requires, as long as the filing of notice of appeal was on time.

Q: can an appeal be withdrawn?

A: yes.

JS: when you become lawyers, when the penalty of your client does not exceed 6 years, why would you appeal?
You better advice your client to apply for probation not unless you are very close to the judge that is a different
story.

Q: if this an appeal from MCT to the RTC, when can it be withdrawn?

A: Section 12. Withdrawal of appeal. — Notwithstanding the perfection of the appeal, the RTC, first level courts,
as the case may be, may allow the appellant to withdraw his appeal before the record has been forwarded by
the clerk of court to the proper appellate court as provided in section 8, in which case the judgment shall
become final. The RTC may also, in its discretion, allow the appellant from the judgment of a first level court to
withdraw his appeal, provided a motion to that effect is filed before rendition of the judgment in the case on
appeal, in which case the judgment of the court of origin shall become final and the case shall be remanded to
the latter court for execution of the judgment.

JS: in the MTC, you can withdraw before the records are transmitted to the RTC. But you did not do that, the
records are not transmitted to the RTC, can you still withdraw? Yes. That is discretionary upon the RTC, as long
as your motion to withdraw is filed before the appellate court renders a decision.

JS: the right of lawyer to appear is only limited until after the termination of the case on that court. So you need
another client-lawyer engagement if you want to retain him on appeal. In fact the court may appoint a council
the officio for the accused on appeal when he could no longer pay the fee for lawyers.
 Lecture 4- finals

Review
JS: in fact there is a question in your midterm examination in connection with this, no hot seat only for tonight. The
rules with that of the RTC is just the same unless there is a law which expressly provides like the Rules on
summary Procedure. I was telling you before that if the case is within the jurisdiction of the first level court, you
have to determine whether that is tried by the regular rules or whether that is tried by the Rules on Summary
Procedure.

Q: now, what are again the cases covered by Rules on Summary Procedure?
Answer:
1. Violations of city or municipal ordinances
2. Violations of traffic Rules and regulations
3. Criminal cases with penalty of imprisonment not exceeding 6 months or a fine not exceeding 1000 pesos,
irrespective of the accessory and civil liabilities.
4. Reckless imprudence resulting to damage to property which damage does not exceed 10,000 pesos

Q: some peculiar characteristics of the Rules on Summary Procedure as distinguished from the regular rule
Answer:
1. If the prosecutor’s office files the information, the court will not issue a warrant for the arrest of the
accused; instead it will issue an order requiring the accused to submit his counter affidavit or affidavit of his
witnesses within 10 days. Is only when the accused failed to comply with that order that the court may issue a
warrant for his arrest or when he failed to appear in court whenever his presence is required.
JS: so definitely there is no warrant of arrest here. Parang this are cases, we talked about, non-bailable but not
perpetua, because the law here does not require the accused to post a bond or bail.
2. In terms of the direct testimony of the witnesses even before SC Circular 12-8-8, they are now required to
submit their affidavits of witnesses which will form as a direct testimony of these witnesses
JS: no affidavits, you cannot present the witnesses. Although now, under SC Circular 12-8-8, in the first level
court it mandatory for all witnesses judicial affidavits; in the second level court, it depends if the witness
testifies in the civil liability or the accused wants to be heard by judicial affidavit where we order (judicial
affidavit),
JS: when you are asked where lies the difference between the Rules of Summary Procedure and that of 12-8-8,
I think the major difference is that in 12-8-8, there are certain forms which the judicial affidavit have to
conform which is not required actually in the rules on summary procedure
JS: but there are exceptions here, in Rebuttal or sur-rebuttal – defense has already rested his case, the
prosecution can present a rebuttal after that, the defense can now submit his sur-rebuttal.
3. In rules on Summary Procedure, we do not call it pre-trial instead it is called preliminary conference.
4. There is no presentation of witnesses, not unless the court asked for clarificatory questions in which case the
parties are required to submit their respective memorandum or position papers and the court will decide on
that.
JS: btw, the court cannot cross-examine, the court can only ask clarificatory questions because, according to
SC in the very famous case of People vs. Larañaga, “the court is not a wall flower” I love that, so we are
allowed to ask clarificatory questions but not to cross-examine.

JS: people vs. Larañaga, the Court is not a wall flower so we can ask clarificatory questions. That justifies the
court’s right to ask clarificatory question because at the end of the day it is the court that will render the
decision, either to acquit of to convict. That is in the interest of substantial justice

Q: along with this concept of the cases covered by the Rules on Summary Procedure, there is conciliation before
the Lupon. This will happen when?
A: when the parties involved are residing in the same barangay and the case penalized by an imprisonment not 1
year and fine not exceeding 5,000.
JS: there has to be conciliation first before the Lupon, pursuant to the provision of RA 7690 the Local Government
Code of the Philippines. Although you might just be surprised when you are reading, before the local
government code, PD 1508, the Katarngan pambarangay Law is repealed. Before, if there is no compliance with
the Lupon, you can dismiss the case on the ground of pre-maturity – that is the ground in PD 1508. But in the
Local government Code, it is the failure to comply with the condition precedent or lack of cause of action.

JS: so failure to comply may give rise to a motion to quash/dismiss on the ground of failure to comply with the
condition precedent or lack of cause of action.

Q: if the parties are residents of the same city but they belong to different barangays, which barangay would you
file your complaint for conciliation?
A: at the election of the complainant – in the barangay where the respondent is residing or any of the respondent’s
residence.

JS: in civil cases – where the property is located of any portion of the property is located; in criminal cases – where
any of the respondents reside, at the election of the complainant

Q: instances when you don’t go the Lupon even if the penalty, for example, does not exceed 1 year or the fine does
not exceed 5,000. You do not have to go the Lupon, you can go directly and file the case in court? Exeptions?
Answer:
1. If the person is already under detention or
2. it involves petition for habeas corpus
3. When one of the party is a public officer sued in the official performance of his functions

JS: in one decision of the SC, if in the Lupon the respondent does not appear inspire notice for 2 times, the Lupon
can now issue the requisite Certificate to file an action. But if the parties appeared and it can’t be settled in the
Lupon, you have to go to the Pangkat ng tagapagsundo. At the end of the day it is the pangkat should issue the
certificate to file action. But non-appearance for at least 2 times, the Lupon Secretary as certified by the
chairman may issue the corresponding certificate of action.

Q: an appeal before the CA, you call the parties as?

A: appellant and appellee

JS: appeal is within 15 days from promulgation, unless there is a motion for reconsideration or new trial, you are
given the fresh period of 15 days.

Q: the appellant was ordered by the CA to submit appellant’s brief within 30 days from the receipt of the order in 7
copies. How many copies do you have to furnish to the appellee?
A: 2.

JS: the appellee has also 30 days from receipt of the appellant’s brief to file the appellee’s brief. In the service of
notice, you have to certify that you have furnished the appellee 2 copies of the brief (also furnish 2 copies of
appellee’s brief to the appellant)

Q: in your appellant’s brief, do you have to include assignment or errors of the lower court?
A: in criminal cases, NO.

JS: in civil cases, when you make your appellant’s brief, you have to have to include assignment of error because
that is the basis of the CA’s decision. No assignment of error, you case is dismissed outrightly. But it is not
required in criminal cases.

Q: why?
A: in criminal cases, once it is appealed, it opened in its entirety for review.

Q: what are the grounds to dismiss an appeal? Where the particular appellate court who hear will dismiss your
appeal
Answer:
1. The is not meritorious,
2. When the appeal is intended to delay

JS: but those are the grounds after the filing of appellant’s brief.

Q: but before the filing of the appellant’s brief, can there be grounds so that the CA will dismiss your appeal?
A: yes:
1. Failure to file the appellant’s brief within the period as prescribed by the Rule
2. If the accused jumped bail, escaped or flee – he loses the remedies he has. Unless he surrenders within the
prescribed period and files a motion for reconsideration.

JS: although the 30-day period of filing the brief is not extendable, the court may be extended in most compelling
reasons which only the court of appeals can determine. Btw, after 30 days of the appellee’s brief also, you must
file a reply within 20 days.

JS: I told you before when the accused jumped bail; he loses all the remedies he has including the right to appeal.
Those have the same effects. He was able to appeal because he was present during the promulgation. But while
the case was on appeal he escaped from detention, he jumped bail, the CA will have to dismiss the case.

Q: can there be a motion for new trial before the CA?

A: yes, on the ground of newly discovered evidences. Even in civil cases, there si also a motion for new trial before
the CA.

Q: when could you file the motion for new trial before the CA on the ground of newly discovered evidence? It is
always the ground for new trial.
A: before the judgment becomes final. At any time after perfection of the appeal and before the CA renders a
decision and before it becomes final.

JS: example: the case was decided by RTC. You have 15 days to appeal or file a motion for new trial. You failed to
appeal. You appeal therefore and you found newly discovered evidence, but the records were already
transmitted to the CA. you can still file, in the CA, a motion for new trial before the CA renders a decision and
before it becomes final and executory.

Q: can you withdraw your appeal?

A: yes, it could be in the discretion of the court or could be a matter of right.

Q: When is it a matter or right? When is it dependent upon the discretion of the court?
A: before the filing of the appellant’s brief, it is a matter of right. After filing appellant’s brief and before the CA
renders decision.

JS: btw, if the case is on appeal and it was noticed by the CA that it was the accused himself who (the accused can
file a notice of appeal, it is allowed). What should the CA do?
A: the CA will appoint a counsel de oficio.