SECOND DIVISION

[G.R. No. 161330. February 20, 2007.]

RENE CABARLES, petitioner, vs. HON. JUDGE BONIFACIO

SANZ MACEDA AND PEOPLE OF THE PHILIPPINES,
respondents.

DECISION

QUISUMBING, J : p

In an original action filed under Rule 65 of the 1997 Rules of Civil

Procedure, petitioner Rene Cabarles seeks to annul the Order 1 issued by
respondent Judge Bonifacio Sanz Maceda in Criminal Case No. 99-0878, entitled
People of the Philippines v. Rene "Nonoy" Cabarles y Adizas , for murder, filed
with the Regional Trial Court of Las Piñas City, Branch 275. The questioned
Order dated April 1, 2003 cancelled the scheduled promulgation of judgment
and reopened the case for reception of evidence from two prosecution
witnesses who were not presented during trial.

The facts of the case are as follows:

On June 18, 1999, Cabarles was charged with murder under the following
information:
The undersigned Prosecutor II accuses RENE "NONOY" CABARLES
Y ADIZAS of the crime of Murder, committed as follows:
That on or about the 25th day of April, 1999, in the City of Las
Piñas, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, without justifiable motive with intent to kill
and by means of treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault, and stab with
a deadly weapon (fan knife) one Antonio Callosa , which directly
caused his death.

CONTRARY TO LAW. 2

Cabarles pleaded not guilty. The trial court scheduled the case for hearing
on the following dates, to wit: pre-trial on November 22, 2000; presentation of
prosecution's evidence on April 18, May 4, 11, 18, and 23, 2001; and
presentation of defense evidence on June 20 and 27, July 4 and 18, and August
1, 2001. 3
The prosecution had subpoenas issued to its witnesses: Flocerfina Callosa,
the mother of the deceased; Imelda Pedrosa, the alleged eyewitness; Carlos
Callosa, brother of the deceased; and Dr. Romeo T. Salen, Police Senior
Inspector of the Southern Police District (SPD) Crime Laboratory to testify on
the contents of the death certificate of Antonio Callosa. CSTcEI

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 Through no fault of its own, the prosecution was unable to present its
evidence on the first four hearing dates. Instead, trial on the merits began only
on May 23, 2001 when the prosecution called Carlos Callosa to the witness
stand. Since defense counsel agreed to stipulate that Carlos would testify on
matters in his May 13, 1999 Sinumpaang Salaysay, his testimony was
dispensed with.
The second prosecution witness, Police Inspector Prudencio Parejos, was
presented in court during the June 20, 2001 hearing. His testimony was likewise
dispensed with after defense counsel agreed to stipulate that Police Inspector
Parejos would testify on what was in the spot report of the stabbing incident. In
the June 20, 2001 hearing, the prosecution said it would offer its evidence and
rest its case should the People fail to present a witness at the next scheduled
hearing. 4
When the case was called on June 27, 2001, the prosecution failed to
present a witness. Neither Pedrosa nor Dr. Salen appeared during the said
hearing. Records show that four subpoenas were issued to Pedrosa informing
her that she had to appear on November 22, 2000, 5 April 11 6 and 18, 7 May 11
and June 20, 8 and August 1, 2001. 9 The first subpoena was personally received
by her; the second subpoena by her husband, Salvador Pedrosa; and the third
and fourth subpoenas had no proofs of service. Meanwhile, the three
subpoenas issued to Dr. Salen requiring his attendance on May 11 10 and 23, 11
June 20, 12 and August 1, 2001, 13 were all returned with the notation
"addressee moved." There was no evidence, however, that subpoenas were
issued to these two witnesses requiring their attendance for the June 27, 2001
hearing, which would explain why they were absent. Taking into consideration
the absence of a subpoena issued to Pedrosa and Dr. Salen and
notwithstanding the vehement objection registered by Cabarles, Judge Maceda
gave the prosecution a last chance but warned:
. . . It is however understood whether the subpoena is actually
issued and served or not upon the prosecution witnesses and service of
such subpoena or notice will not relieved (sic) the prosecution to make
a formal offer of evidence should the prosecution failed (sic) to present
any witness in the next scheduled hearing. 14

With no witness for the August 1, 2001 hearing, the prosecution rested its
case and formally offered its evidence. 15

Thereafter, Cabarles, with leave of court, filed a demurrer to evidence but

it was denied by Judge Maceda. 16 Two witnesses were called for the defense,
accused Cabarles and Luisito Javier, a fisherman.
A day before the scheduled promulgation of judgment on April 2, 2003,
Judge Maceda motu proprio issued the questioned order reopening the case. In
it, he observed that the prosecution may not have been given its day in court
resulting in a miscarriage of justice. He explained that because there was a
mix-up in the dates specified in the subpoena and the hearing dates of when
the case was actually heard, the prosecution was unable to present its evidence
on the first four of the five hearing dates: April 18, May 4, 11 and 18, 2001
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 assigned to it. Judge Maceda found that there was no hearing conducted on
April 18, 2001. Thereafter, the subpoena issued to Pedrosa required her to
appear on April 11, 2001, which was not a date assigned for the prosecution
but May 11, 2001. Also, Judge Maceda noted that another subpoena was issued
to Pedrosa and Dr. Salen requiring them to appear on May 11 and June 20,
2001. But, the May 11, 2001 hearing was reset to May 25, 2001 because the
judge was indisposed, and insofar as the June 20, 2001 setting was concerned,
it was not one of the days set by the court for the prosecution. Judge Maceda
further observed that the May 18, 2001 hearing was never scheduled and May
25, 2001 was likewise not a hearing date set by the court. According to Judge
Maceda, since the prosecution was not able to present its evidence on the first
four hearing dates and there was either no return on the subpoenas
subsequently issued or there was no subpoena issued at all to Pedrosa and Dr.
Salen, the prosecution should have been given a last chance to present the
alleged eyewitness and the doctor. His order in part read:
. . . As a consequence[,] the promulgation set tomorrow, April 2,
is canceled. Set the reception of the testimony of the eye witness and
the doctor on May 1, 2003 at 2:00 [p.]m. to enable the prosecution to
avail [of] the last chance granted by this Court.
caITAC

Issue the corresponding subpoena to Imelda Pedrosa and Dr.

Romeo T. Salen directing them to appear on the aforesaid date and
time, to be served by the Branch Sheriff who is required to make a
prompt return thereof.

SO ORDERED. 17

Judge Maceda denied Cabarles's motion for reconsideration in an Order

dated April 25, 2003 and set the case for hearing on May 8, 2003 to hear the
testimonies of Pedrosa and Dr. Salen. The subpoena issued to Pedrosa for that
hearing was duly served, 18 but service upon Dr. Salen failed since the doctor
was no longer assigned to the SPD Crime Laboratory. Notwithstanding the
service upon Pedrosa, the prosecution still failed to present a witness during the
May 8, 2003 hearing. Nonetheless, Judge Maceda, upon motion, again decided
to extend to the prosecution another chance, giving the People June 19 and July
3, 2003 as additional hearing dates. 19

Finally, on June 19, 2003, Pedrosa took the witness stand and completed
her direct examination. A few days thereafter, Cabarles filed the present
petition questioning Judge Maceda's order, alleging that it was issued with
grave abuse of discretion. Since trial in the lower court continued, on July 3,
2003, the Public Attorney's Office conducted its cross-examination of Pedrosa.

On July 24, 2003, the defense counsel agreed on the facts contained in
the death certificate of the victim, so the testimony of Dr. Salen was dispensed
with. Thereafter, Judge Maceda set the date for the reception of evidence on
the civil aspect of the criminal case on August 14, 2003, when Carlos, the
deceased's brother, was recalled to the witness stand. 20

Cabarles was then given a chance to adduce further evidence on his

behalf.
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 On August 9, 2004, Judge Maceda deferred the promulgation of judgment
and ordered the case archived pending this Court's resolution of the case. 21
In his petition, Cabarles raises as issues the following:
[1] WHETHER THE RESPONDENT HONORABLE JUDGE GRAVELY ABUSED
HIS DISCRETION WHEN HE ISSUED THE QUESTIONED ORDER DESPITE
THE ABSENCE OF A FINAL JUDGMENT OF CONVICTION.
[2] WHETHER PETITIONER'S RIGHT TO DUE PROCESS AND SPEEDY
DISPOSITION OF HIS CASE WAS VIOLATED. 22

Did Judge Maceda act with grave abuse of discretion in issuingmotu

proprio the April 1, 2003 Order reopening the case, before judgment was
rendered, to receive the testimonies of two prosecution witnesses after both
parties had rested their case? Did the said order violate Cabarles's right to due
process and speedy disposition of his case?

On the first issue, Cabarles insists that Judge Maceda gravely abused his
discretion when he ordered the reopening of the case before promulgation of
judgment although both parties had already rested their case. Cabarles argues
that a case may only be reopened after a judgment of conviction has been
made but before its finality, as provided in Section 24, 23 Rule 119 of the
Revised Rules of Criminal Procedure. Cabarles insists that the reopening of a
case under Section 24 presupposes that judgment has already been
promulgated, which is not the case here. According to petitioner, the cases
cited by the People are not at all applicable in this case since they were tried
and decided before the introduction of Section 24 under the Revised Rules of
Criminal Procedure. aCSHDI

For Judge Maceda, the Office of the Solicitor General (OSG) contends that
Section 24 is a new provision which merely formalized the long accepted
practice of judges of reopening a case to avoid a miscarriage of justice. This
being the case, jurisprudence providing that a judge has the discretion to
reopen a case even before promulgation of judgment still holds.
After a thorough consideration of the submissions by the parties, we find
that the petition is meritorious.

A motion to reopen a case to receive further proofs was not in the old
rules but it was nonetheless a recognized procedural recourse, deriving validity
and acceptance from long, established usage. 24 This lack of a specific provision
covering motions to reopen was remedied by the Revised Rules of Criminal
Procedure which took effect on December 1, 2000.

The April 1, 2003 Order was issued under the Revised Rules of Criminal
Procedure. Section 24, Rule 119 and existing jurisprudence stress the following
requirements for reopening a case: (1) the reopening must be before the finality
of a judgment of conviction; (2) the order is issued by the judge on his own
initiative or upon motion; (3) the order is issued only after a hearing is
conducted; (4) the order intends to prevent a miscarriage of justice; and (5) the
presentation of additional and/or further evidence should be terminated within
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 thirty days from the issuance of the order.
Generally, after the parties have produced their respective direct proofs,
they are allowed to offer rebutting evidence only. However, the court, for good
reasons, in the furtherance of justice, may allow new evidence upon their
original case, and its ruling will not be disturbed in the appellate court where no
abuse of discretion appears. 25 A motion to reopen may thus properly be
presented only after either or both parties had formally offered and closed their
evidence, but before judgment is rendered, 26 and even after promulgation but
before finality of judgment 27 and the only controlling guideline governing a
motion to reopen is the paramount interest of justice. 28 This remedy of
reopening a case was meant to prevent a miscarriage of justice. 29
However, while Judge Maceda is allowed to reopen the case before
judgment is rendered, Section 24 requires that a hearing must first be
conducted. Judge Maceda issued the April 1, 2003 Order without notice and
hearing and without giving the prosecution and accused an opportunity to
manifest their position on the matter. This failure, to our mind, constitutes
grave abuse of discretion and goes against the due process clause of the
Constitution which requires notice and opportunity to be heard. 30 The issuance
of the said order, without the benefit of a hearing, is contrary to the express
language of Section 24, Rule 119.
Although the defense counsel had cross-examined Pedrosa and had
participated in the proceedings after the case was reopened by Judge Maceda,
the same does not amount to a waiver of Cabarles's objection to the April 1,
2003 Order. To be effective, a waiver must be certain and unequivocal. 31 Here,
Cabarles filed the present petition seeking for a writ of certiorari against Judge
Maceda before Pedrosa was cross-examined. Also, when asked to comment on
the prosecution's formal offer of evidence taken after the case was reopened,
Cabarles objected to its admission on the ground that the same was
inadmissible having been received by the court after Judge Maceda issued the
questioned order.
On the second issue, Cabarles maintains that contrary to Judge Maceda's
observation, the prosecution was given ample opportunity to present its case as
seen by the issuance of several subpoenas to Pedrosa and Dr. Salen. Cabarles
argues that he is presumed innocent until proven guilty and should not be
made to wait indefinitely for prosecution witnesses to testify. To do so would
violate his constitutional right to due process and a speedy disposition of his
case. According to Cabarles, the reopening of the case is clearly detrimental to
him since it meant another day in prison.
The OSG counters that the reopening of the case was made in accordance
with Section 24 since the prosecution is entitled to the reopening of the case to
prevent a miscarriage of justice. Furthermore, Cabarles's right to a speedy trial
had not been violated since delays caused by the absence of a prosecution
witness are excluded when computing the time within which trial should start
under Section 3, 32 Rule 119 of the Revised Rules of Criminal Procedure.

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 Although the matter of reopening a case for reception of further evidence
is largely a matter of discretion on the part of the trial court judge, this judicial
action must not, however, be done whimsically, capriciously and/or
unreasonably. 33 In this particular case, the prosecution was given ample
opportunity to present all its witnesses but it failed to do so. The failure of the
prosecution to take full advantage of the opportunities given does not change
the fact that it was accorded such opportunities. Contrary to the justification
stated in the April 1, 2003 Order, the prosecution was not deprived of its day in
court. While it may be true that due to some confusion with the trial court's
calendar, some of the trial dates assigned to the prosecution did not push
through and some of the subpoenas issued to Pedrosa and/or Dr. Salen
pertained to hearing dates which were different from those assigned for
reception of prosecution's evidence, still the prosecution had a total of four
hearing dates when it was given the chance to prove its case: May 23, June 20
and 27, and August 1, 2001. The presence of prosecution witnesses in court is
the responsibility of the public prosecutor and it is incumbent upon him to take
the initiative of ensuring the attendance of his witnesses at the trial. 34

Since Judge Maceda issued the questioned order without complying with
the third requirement of Section 24, that there be a hearing conducted before
the order to reopen is issued, then the assailed order must be annulled and set
aside for having been issued contrary to law and consequently with grave
abuse of discretion. 35
On Cabarles's right to a speedy disposition of his case, we agree that
under the Constitution, all persons shall have the right to a speedy disposition
of their cases. Nowhere is this guaranty more significant and meaningful than in
criminal cases where not only the fortune, but the life and liberty of the accused
as well, are at stake. 36

Although a discussion on the right to speedy disposition of the case is

mooted by our nullification of Judge Maceda's April 1, 2003 Order as having
been issued with grave abuse of discretion, we are constrained to reiterate that
the concept of speedy disposition is relative or flexible. A mere mathematical
reckoning of the time involved is not sufficient. Particular regard must be taken
of the facts and circumstances peculiar to each case. 37 The right to a speedy
disposition of a case, like the right to speedy trial, is deemed violated only
when the proceeding is attended by vexatious, capricious, and oppressive
delays; or when unjustified postponements of the trial are asked for and
secured; or when without cause or justifiable motive, a long period of time is
allowed to elapse without the party having his case tried. 38
With regard to the OSG's allegation in its Comment and Memorandum,
that Cabarles failed to observe the rule on hierarchy of courts since the petition
for certiorari was filed directly with the Supreme Court, Cabarles insists that he
is a detention prisoner needing immediate resolution of his case. He also
argues that this case not only involves grave abuse of discretion but also a pure
question of law involving the application of Section 24, which is a new
provision. 39

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 It is necessary to stress that a direct recourse to this Court is highly
improper for it violates the established policy of strict observance of the
hierarchy of courts. This Court's original jurisdiction to issue a writ of certiorari
is concurrent with the Court of Appeals and with the regional trial courts in
proper cases within their respective regions. However, this concurrence of
jurisdiction does not grant a party seeking any of the extraordinary writs the
absolute freedom to file his petition with the court of his choice. This Court is a
court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the Constitution and immemorial tradition. The
hierarchy of courts determines the appropriate forum for such petitions. Thus,
petitions for the issuance of such extraordinary writs against a regional trial
court should be filed with the Court of Appeals. A direct invocation of this
Court's original jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefor, clearly and specifically set out
in the petition. This is the established policy. It is a policy that is necessary to
prevent inordinate demands upon this Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent
further overcrowding of its docket. 40
Under the present circumstances however, we are willing to take
cognizance of this case as an exception to the principle of hierarchy of courts.
Cabarles invokes the jurisdiction of this Court in the interest of speedy justice
since the information against him was filed way back in June 1999, 41 and
almost eight years thereafter, no judgment has yet been rendered. Any further
delay in the resolution of the instant petition will be prejudicial to Cabarles.
Also, the Court has full discretionary power to take cognizance of the petition
filed directly to it for compelling reasons or if warranted by the nature of the
issues raised. 42 Since Section 24 is a new provision, and considering the
irregularities in the issuance of the April 1, 2003 Order, it is necessary to
resolve the issues raised in this petition. TCcIaA

As a final word, we find the Supreme Court's pronouncement in the case

of People v. Monje instructive:
A proposal has been expressed for the remand of this case to the
trial court for further proceedings, apparently to enable the prosecution
to prove again what it failed to prove in the first instance. We cannot
agree because it will set a dangerous precedent. Aside from its being
unprocedural, it would open the floodgates to endless litigations
because whenever an accused is on the brink of acquittal after trial,
and realizing its inadequacy, the prosecution would insist to be allowed
to augment its evidence which should have been presented much
earlier. This is a criminal prosecution, and to order the remand of this
case to the court a quo to enable the prosecution to present additional
evidence would violate the constitutional right of the accused to due
process, and to speedy determination of his case. The lamentable
failure of the prosecution to fill the vital gaps in its evidence, while
prejudicial to the State and the private offended party, should not be
treated by this Court with indulgence, to the extent of affording the
prosecution a fresh opportunity to refurbish its evidence.

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 In fine, we are not unmindful of the gravity of the crime charged;
but justice must be dispensed with an even hand. Regardless of how
much we want to punish the perpetrators of this ghastly crime and give
justice to the victim and her family, the protection provided by the Bill
of Rights is bestowed upon all individuals, without exception,
regardless of race, color, creed, gender or political persuasion —
whether privileged or less privileged — to be invoked without fear or
favor. Hence, the accused deserves no less than an acquittal; ergo, he
is not called upon to disprove what the prosecution has not proved. 43

WHEREFORE, the instant petition is GRANTED. We hold that the assailed

Order dated April 1, 2003 was issued with grave abuse of discretion. Said Order
is hereby ANNULLED and SET ASIDE. Accordingly, any evidence received and
offered in this case as a result of the April 1, 2003 Order is hereby stricken off
the record. Let the records of this case be REMANDED immediately to the trial
court concerned for its appropriate action without further delay. No
pronouncement as to costs.
SO ORDERED.

Carpio, Carpio-Morales, Tinga and Velasco, Jr., JJ., concur.

Footnotes
1. Rollo , pp. 14-15.
2. Id. at 13.

3. Records, p. 37.
4. Id. at 66.
5. Id. at 41.
6. Id. at 47.
7. Supra note 5.

8. Id. at 55.
9. Id. at 72.
10. Id. at 52.
11. Id. at 59.
12. Supra note 10.

13. Id. at 70.

14. Id. at 68.
15. Id. at 74.
16. Id. at 91.

17. Rollo , p. 15.

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 18. Records, pp. 133-134.
19. Id. at 136.
20. Id. at 172.

21. Id. at 223.

22. Rollo , p. 85.
23. SEC. 24. Reopening. — At any time before finality of the judgment of
conviction, the judge may, motu proprio or upon motion, with hearing in
either case, reopen the proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within thirty (30) days from the order
granting it.
24. Alegre v. Reyes , No. L-56923, May 9, 1988, 161 SCRA 226, 231.
25. Gacayan v. Pamintuan, A.M. No. RTJ-99-1483 (OCA-IPI No. 98-578-RTJ),
September 17, 1999, 314 SCRA 682, 694; People v. Castro-Bartolome , G.R.
No. 45037, November 21, 1991, 204 SCRA 38, 42.
26. Alegre v. Reyes, supra note 24; II F. Regalado, REMEDIAL LAW COMPENDIUM
551 (10th ed., 2004), citing People v. Concepcion , 84 Phil. 787, 788 (1949).
27. REVISED RULES OF CRIMINAL PROCEDURE, Rule 119, Sec. 24; II F. Regalado,
REMEDIAL LAW COMPENDIUM, supra.
28. People v. Tee, G.R. Nos. 140546-47, January 20, 2003, 395 SCRA 419, 444.

29. II F. Regalado, REMEDIAL LAW COMPENDIUM, supra.

30. See Lam v. Chua, G.R. No. 131286, March 18, 2004, 426 SCRA 29, 40.

31. Larranaga v. Court of Appeals , G.R. No. 130644, March 13, 1998, 287 SCRA
581, 591.

32. SEC. 3. Exclusions. — The following periods of delay shall be excluded in

computing the time within which trial must commence:

(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
(1) Delay resulting from an examination of the physical and mental condition
of the accused;
(2) Delay resulting from proceedings with respect to other criminal charges
against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;

(4) Delay resulting from pre-trial proceedings; provided, that the delay does
not exceed thirty (30) days;
(5) Delay resulting from orders of inhibition, or proceedings relating to
change of venue of cases or transfer from other courts;
(6) Delay resulting from a finding of the existence of a prejudicial question;
and

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 (7) Delay reasonably attributable to any period, not to exceed thirty (30)
days, during which any proceeding concerning the accused is actually under
advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be considered
absent when his whereabouts are unknown or his whereabouts cannot be
determined by due diligence. He shall be considered unavailable whenever
his whereabouts are known but his presence for trial cannot be obtained by
due diligence.
(c) Any period of delay resulting from the mental incompetence or physical
inability of the accused to stand trial.
(d) If the information is dismissed upon motion of the prosecution and
thereafter a charge is filed against the accused for the same offense, any
period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there
been no previous charge.
(e) A reasonable period of delay when the accused is joined for trial with a
co-accused over whom the court has not acquired jurisdiction, or, as to
whom the time for trial has not run and no motion for separate trial has been
granted.
(f) Any period of delay resulting from a continuance granted by any court
motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings
set forth in the order that the ends of justice served by taking such action
outweigh the best interest of the public and the accused in a speedy trial.
33. Gacayan v. Pamintuan, supra note 25, at 695.
34. People v. Monje , G.R. No. 146689, September 27, 2002, 390 SCRA 160, 174.
35. See Information Technology Foundation of the Philippines v. Commission on
Elections, G.R. No. 159139, January 13, 2004, 419 SCRA 141, 148.
36. Clave v. Sandiganbayan, et al., G.R. No. 102502 and Cruz, Jr. v. Sandiganbayan,
et al., G.R. No. 103143, June 19, 2001, p. 5 (Unsigned Resolution).
37. Dela Peña v. Sandiganbayan, G.R. No. 144542, June 29, 2001, 360 SCRA 478,
485.
38. Dela Rosa v. Court of Appeals, G.R. No. 116945, February 9, 1996, 253 SCRA
499, 504, citing Gonzales v. Sandiganbayan, G.R. No. 94750, July 16, 1991,
199 SCRA 298, 307.
39. Rollo , pp. 51-52, 100-102.
40. Page-Tenorio v. Tenorio, G.R. No. 138490, November 24, 2004, 443 SCRA 560,
567-568.
41. Records, p. 1; Rollo, p. 13.
42. Ark Travel Express, Inc. v. Abrogar , G.R. No. 137010, August 29, 2003, 410
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 SCRA 148, 157.
43. Supra note 34, at 179-180.

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