Opposition To Motion To Amend

 

Republic of the Philippines

REGIONAL TRIAL COURT 7th Judicial Region Branch 57 Cebu City PEOPLE OF THE PHILIPPINES,  Plaintiff, - versus -

Crim. Case No. CBU-78740 For: Viol of Sec. 11, Art II For: Viol of R.A. 9165

LESTER TROCIO Y DERLA,  Accused, x----------------------------------------/

OPPOSITION TO THE MOTION FOR LEAVE TO AMEND INFORMATION  Accused, by  Accused,  by and through the Public Attorney’s Office, unto this Honorable Court most respectfully avers THAT: 1.  On September 4, 2007, the accused was arraigned for the abovementioned case and the pretrial thereon was held immediately thereafter. 2.  It is the stand of the defense that amendment at this stage of the proceedings is already untimely. 3.  The prosecution is trying to convince the Honorable Ho norable Court that the amendment is only as to form and and it will not affect the the theory ory of the defense. This argument is purely a baseless assumption, as this amendment will surely affect the defense theory. One of the defense theor theories ies is that accused could not have possibly been caught in the possession of a dangerous drug on December 8,  2006 at the time and place mentioned in the Information because because   accused had already been arrested on December 2, 2006 for a violation of Sec.12, Art.II of R.A. 9165 and was already detained at that time. time.

In fact, accused had also b been een duly a arraigned rraigned for this all alleged eged

 violation of Sec. 12 and the prosecution mentions in its motion that the Information against the accused in CBU-78741 for such violation states that the crime was committed on the 2nd  day of December 2006. Consideri Considering ng that the primary defense of the accused consists of the contention that NO DANGEROUS DRUG WAS EVER FOUND IN HIS POSSESSION, the defense of the accused that he could not have been found in possession of dangerous drugs on Dec. 8, 2006

 

at the time and place mentioned in the Information, being already detained at that time for another offense, completely tallies with this.

The prosecution

cannot state that changing the date from December 8 to December 2 would not change or affect the theory of the defense since the change of date would deprive the accused of one of his material defenses.

4.  One of the contentions in the motion of the prosecution is that the Joint Affidavit of the arresting officers attached to the records of the case shows that it was on December 2, 2006 that the accused was caught in the possession of the illegal drugs and drug drug paraphernal paraphernalia. ia. However, such has not even be been en affirmed and confirmed as as true and corr correct ect by the alleged affiants thereof. As the Honora Honorable ble Court and prosecution are well aware of, the affidavits executed in connection  with cases are not always reflective of the correct facts and circumstan circumstances ces surrounding a particular particular arrest arrest.. As things stand, the matter rraised aised in this case, as to whether the accused was arrested for possession of a dangerous drug on December 8, 2006 or December 2, 2006, is evidentiary in character.  WHEREFORE,, premises considered, it is respectfully prayed of this Honorable  WHEREFORE Court to deny the motion for leave to amend the information filed by the prosecution. Respectfully Respectfull y submitted this September 24, 2007 at Cebu City, Philippines. PUBLIC ATTORNEY’S OFFICE  

Counsel for the Accused Fernan Memorial Hall of Justice Cebu City By:

 Atty. CATHERINE CATHERINE BAGAN BAGANO O RTC 57 – Clerk of Court

Please submit the foregoing pleading for the consideration of the Honorable Court. Thank you.

Copy furnished:

Hon. Pros. LINETH LAPINID Public Prosecutor

 

  Republic of the Philippines REGIONAL TRIAL COURT 7TH Judicial Region City of Cebu Branch 10 THE PEOPLE OF THE PHILIPPINES, Plaintiff, 

CRIM. CASE NO. CBU-95760  CBU-95760  FOR: R.A. 8294

-versusGREGG O. REYNES  REYNES   Accused.  x------------------------------------/

COMMENT/OBJECTION TO THE MOTION FOR LEAVE OF COMMENT/OBJECTION COURT TO AMEND INFORMATION AND TO ADMIT AMENDED INFORMATION GREGG O. REYNES, REYNES, through counsel, to this Honorable Court, most respectfully submits its comment/objection to the motion for leave to amend information informati on and avers that: 1. 

The change intended by the prosecution cannot be effected by amendment. Although it may be argued that the change of the serial number will not change the facts and the circumstances of the arrest still it is the humble submission of the defense that since the evidence, more specifically the firearm, required to be presented to support a conviction based on the proposed amended information would be entirely different from what is required to be presented

to

prove

the

original

charge,

clearly

the

two

Informations are charging two distinct and separate offenses;

2. 

Further, the change of the serial number alleged in the information is not merely formal but involves a substantial change from the original charge hence it cannot be made over the objection of the accused without violating his right;

3. 

As

pointed

out

by

the

Supreme

Court

in

the

case

of Teehankee v. Madaya1 ,  An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the 1

 G.R. No. 103102 March 6, 1992

 

information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.

PRAYER WHEREFORE,, in view of the foregoing, it is most respectfully prayed that WHEREFORE the motion for leave of court to amend the information be denied. Other reliefs which are just and equitable under the premises are likewise prayed for; Cebu City, Philippines. December 3, 2012 PUBLIC ATTORNEY’S OFFICE 

Department of Justice Counsel for the Accused The Chief Justice Fernan Memorial, Hall of Justice, Capitol Site, Cebu City

By:

 _______________________________  _________________ ______________ REQUEST The Branch Clerk of Court RTC Branch Branch 10 , Cebu City GREETINGS. Please submit the foregoing COMMENT/OBJECTION for the consideration of the Honorable Court immediately upon receipt hereof. Cebu City, Philippines, December 1, 2012 ATTY. Copy furnished: Pros. Raul V. Cristoria

ORSP, 2/F Palace of Justice Capitol Compound., Cebu City