PRELIMINARY INVESTIGATION

Hegerty v CA
G.R. No. 154920. August 15, 2003
1st Division – Ynares-Santiago, J.
FACTS:
Crime Estafa; Art 315 (1) (b) RPC

Parties Petitioner: Rodney Hegerty

Respondent: Allan Nash; CA

Nature Petition for Review (Rule 45?)

Events Contention of Allan Nash

before filing 1. Rodney Hegerty, Don Judevine, and James Studenski invited Allan Nash to invest in a foreign
(commission exchange scheme with a guaranteed return of 10.45% per annum.
of the crime) 2. From July 1992 to Nov. 1997, Nash has invested a total of $236,353.34.
3. Dec 1997, Hegerty informed Nash that all of his investments had been lost after petitioner lent a
portion of the investment to Swagman Hotels. Petitioner first offered to return half of the
investment but later on withdrew the offer.
Defense of Rodney Hegerty
1. He never offered Nash to invest, neither did he divert any investment to Swagman Group of
Companies.
2. He admitted knowing Judevine and Studensky, but said that they weren’t business partners.

Office of 1. Dismissed Nash’s complaint for insufficient evidence. (received: 16 JUN 1999)
City 2. Nash filed MR (filed: 28 JUN 1999), dismissed by OCP (received: 8 MAY 2000)
Prosecutor
(OCP)

Department 1. Nash filed an appeal (filed: 19 MAY 2000), but was dismissed by DoJ for having been filed out of
of Justice the 15 day period (Should’ve been 15 MAY 2000).
2. The subsequent MR was also denied for being filed after reglamentary period of 10 days.

Court of 1. Nash filed petition for certiorari and mandamus (Rule 65 RoC) contending that DOJ acted in grave
Appeals abuse of discretion amounting to lack or excess of jurisdiction when it denied Nash’s MR.
2. CA granted the petition, thus directing public respondent to prosecute Hegerty for the crime of
estafa.

Supreme Hegerty now filed a petition for review

Court
Contentions:
1. Nashs appeal and MR were both filed out of time, thus making prosecutor’s resolution final and
executory. Thus, DoJ & CA never acquired jurisdiction over the case.
2. Since CA didn’t acquire jurisdiction over the case (see previous issue), it cannot order the filing of
such.

ISSUES/RULING
1. MAIN ISSUE: W/N City Prosecutor acted with grave abuse of discretion in dismissing the complaint
for estafa – No.
- SC: A public prosecutor, by the nature of his office, is under no compulsion to file a criminal
information where no clear legal justification has been shown, and no sufficient evidence of guilt
nor prima facie case has been presented by the petitioner.
- determination of probable cause during a preliminary investigation or reinvestigation is
recognized as an executive function exclusively of the prosecutor.
 - Prosecuting officers have equally the duty not to prosecute when after investigation or
reinvestigation they are convinced that the evidence adduced was not sufficient to establish
a prima facie case.
- In this case, there is no showing of grave abuse of discretion (Thus remedy of mandamus does not
lie)

2. W/N appeal was filed out of time – YES.

- DoJ Order No. 223 Sec 2 states that appeal must be filed w/in 15 days from receipt of question
resolution. This period is interrupted by filing of a motion for reconsideration.
- In this case, Nash received Office of Prosecutor’s dismissal of complaint on 16 JUN 1999. He filed
an MR 10 days after. Thus, after receipt of the MR’s dismissal, he should’ve filed within 5 days to
comply with the 15-day period.

JUDGMENT WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision of the Court of Appeals in CA
G.R. SP No. 66680 is REVERSED and SET ASIDE. The Resolution of the City Prosecutor of Manila, which
dismissed the complaint against petitioner for estafa, and the Resolution of the Department of Justice
which denied respondents appeal, are REINSTATED. No costs.

Notes:
grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.

Sec 2 DOJ Order No. 223 When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the
questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for
reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution
denying the motion shall have been received by the movant or his counsel.

Elements of Crime:
Estafa -
(1) That money, goods, or other personal property be received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of, or to return, the same;
(2) That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such
receipt;
(3) That such misappropriation or conversion or denial is to the prejudice of another; and
(4) That there is a demand made by the offended party to the offender.