Rule 120 Judgment

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Rule 120 Judgment

Rule 120 JUDGMENT

Q: What is the definition of judgment in criminal cases? A: Section 1: SECTION 1. Judgment; definition and form. – Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. (1a) Q: What does it contain? A: Section 2: SEC. 2. Contents of the judgment. – If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (2a) There is something wrong in convicting somebody without even a clear statement of why he is guilty. According to the SC, why is it that the law requires, especially in criminal cases, the judge should be careful in rendering a judgment? Why must it be clearly stated why you are guilty under Section 1 & 2. Why is it that under Sections 1 and 2, the judgment must clearly state why you are guilty? In the following cases of PEOPLE vs. CAYAGO 312 SCRA 623 [1999] HELD: “A strict compliance with the mandate of the said provision is imperative in the writing of every decision. Otherwise, the rule would simply a tool for speculations, which this Court will not countenance specifically in criminal cases involving the possible deprivation of human life.” PEOPLE vs. BUGARIN 273 SCRA 384 [1997] J. Mendoza HELD: “The requirement that the decisions of courts must be in writing and that they must set forth clearly and distinctly the facts and the law on which they are based serves many functions. It is intended, among other things, to inform the parties of the reason or reasons for the decision so that if any of them appeals, he can point out to the appellate court the findings of facts or the rulings on points of law with which he disagrees. More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding by ipse dixit [by instinct]. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless vested with the sovereign prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on the power of reason for sustained public

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Rule 120 Judgment

confidence in the justness of his decision. The decision of the trial court in this case disrespects the judicial function.” In other words, among the three branches of government, the judiciary is the weakest. It has no power of the purse or the sword. Purse – congress holds the budget. Sword – the judiciary has no army to enforce decisions unlike the executive where the executive is already the commander-in-chief of the AFP. So how can the judiciary command the respect of the people? There is only one way – the force of its decisions – that its decisions are well argued and logical. This is the only way to have the people believe in the judiciary. If it cannot cope with this, it is an insult, an attack to judges who do not know how to write decisions, because this is how the judiciary earns the respect of the people. Otherwise, baka wala ng maniwala sa korte. That is how the SC explained that idea in the case of Bugarin. One interesting case in relation to Section 2 which dealt with the double jeopardy rule was the case of ABAY, SR. vs. GARCIA 162 SCRA 665 FACTS: On the day of trial, the accused was there with his lawyer. The offended party was not in court. The judge asked the fiscal what action he wanted to proceed with. The fiscal said, “We will look at the records, whether the offended party were properly informed.” Finding that the offended party was properly informed, the fiscal said [oral motion], “In that case your honor, we are moving for the dismissal of the criminal case for lack of evidence now upon us – wala ang offended party eh.” The judge dictated in open court, “Alright, the case is dismissed for failure to prosecute.” With that, the accused went home happy. After the accused left and shortly thereafter, the offended party arrived with his lawyer. After they learned of the dismissal they explained that they had to travel far, had a flat tire and got caught in traffic. The judge found their earlier non-appearance as justified and ordered the revocation or reconsidered the earlier decision of dismissal, consequently resetting the trial. The accused learned of the succeeding events and protested that this was a case of double jeopardy. He contends that all the necessary elements of double jeopardy are present: valid complaint, valid information filed in a competent court; had an arraignment; and the case was dismissed without his express consent. HELD: The order of dismissal was equivalent to an acquittal but a judgment of acquittal under Rule 120 must be in writing. The order dismissing the case was not in writing but was dictated in open court. It was never reduced into writing. What was reduced to writing was the second order which revoked the first order. Since it was never in writing, there was no judgment of acquittal. Therefore, there is no double jeopardy. “However, this order of dismissal must be written in the official language, personally and directly prepared by the judge and signed by him conformably with the provisions of Rule 120, section 2 of the Rules of Court. In the instant case, it is very clear that the order was merely dictated in open court by the trial judge. There is now showing that this verbal order of dismissal was ever reduced to writing and duly signed by him. Thus, it did not yet attain the effect of a judgment of acquittal, so that it was still within the powers of the judge to set it aside and enter another order, now in writing and duly signed by him, reinstating the case.” This is how the Supreme Court skirted the double jeopardy rule by applying Rule 120, Sections 1 and 2. The 2nd paragraph of Section 2 is new and it radically changed the language of the previous rule. Section 2, second paragraph: In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (2a)

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Rule 120 Judgment

This is just a repetition of Rule 111, Section 2 [last paragraph] when the judgment acquits the accused, the judgment should state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise does not exist. Because generally if you are acquitted on reasonable doubt, it will not bar the filing of a separate civil action. But if the fact from which the civil liability might arise does not exist, then the acquittal is already a bar to a future civil liability. Compare this with the language of the 1985 Rules, Rule 120, Section 2, last paragraph: In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the offended party. According to the 1985 Rules, if the accused is acquitted based on reasonable doubt, the court may order the accused to satisfy civil liability because the cause of action in the civil case is already proven although the accused is acquitted. It is possible for the accused to be acquitted and yet is found to be civilly liable based on the 85 Rules. The rule under the 1985 Rules was taken from decided cases such as the case of METROBANK VS. CA (188 SCRA 259). In this case, the accused was charged with estafa. After trial, the court said that there was no estafa. It is only a simple loan – so there is no crime. Normally, the next step is to let the offended party file a civil case to demand payment of the loan. But in the case of Metrobank, the SC said that it is a double effort. The Supreme Court said, “While it is true that petitioner Metrobank can no longer collect private respondent's civil liability on the basis of the criminal case filed, it could nonetheless collect the said civil liability prayed for on the basis of the non-payment of the loan contracted by respondent spouses from the bank. There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. To require a separate civil action simply because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on the part of all concerned.” This was the 1985 Rules. Q: Now, is that rule still valid under the 2000 Rules? A: The new rule is silent. There is nothing here that says that the accused may be acquitted but found civilly liable unlike the 1985 Rules. It only says that in case of acquittal, the judgment should state whether the acquittal is based merely on reasonable doubt or the prosecution absolutely failed to prove the guilt of the accused. In either case, the judgment shall determine if the act or omission from which the civil liability might arise does not exist. But as it is worded now, it would seem, you should file a separate civil case. And the practice of holding the accused liable civilly in a criminal case where he is acquitted, seems to be no longer possible. Under the new rules, just acquit – let him file a separate civil case. The old rule is simplier: No need! Dun na mismo sa criminal case – acquit him but make him civilly liable. But now, the language is different. It is a radical departure from the 1985 rules.

SEC. 3. Judgment for two or more offenses. – When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. (3a) Let’s go back to Rule 110 on duplicitous complaint or information. Under Section 3 of Rule 110, this is defined as a complaint or information which charges more than one offense. This is not allowed. And the remedy here is you file a Motion to Quash under Section 3 [f], Rule 117.

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Rule 120 Judgment

But the defect is waivable because if you do not file a Motion to Quash, the trial can proceed and if you are found guilty for committing 2 or more crimes, then there will be 2 or more penalties. Under Section 3, the court may convict the accused of as many offenses as are charged and proved and impose on him the penalty for each offense if the accused fails to object the duplicitous complaint before the trial.

SEC. 4. Judgment in case of variance between allegation and proof. – When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a)

We will go to this basic principle: Mr. Calizo is charged in an information of committing one crime. However, during the trial, what was proven is another crime. What will happen now? Well, we will have to ask this question – Q: Is the offense proven included in the offense charged or does the offense proven includes the offense charged? A: If YES, then apply Section 4. You convict the accused of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Q: What if kung malayong-malayo? The crime proved is different from the crime charged like for example: The crime charged is homicide and what is proved is robbery. What will happen? Will you apply Section 14 of Rule 110 on substitution of information? A: No, you will not apply Rule 110 Section 14 because we are already through with that stage. We are now in the trial stage where the crime proved is different from the crime charged. Therefore, the proper remedy here is Section 19 of Rule 119, last paragraph: RULE 119, SEC. 19. When mistake has been made in charging the proper offense. – When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (11a) [Editor: Try to correlate this with Section 14, Rule 110. They are similar. But for clearer understanding, please go back to Section 19, Rule 119 in the case of GALVEZ on the distinctions between these two provisions. Thanks!] SEC. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (5a) Q: When does an offense include another, or when is it included in the other? A: Section 5, Rule 120. For example, Mr. Tiamzon is charged with MURDER and what is established is HOMICIDE. Homicide is included in the crime of murder. The elements are identical. The only difference is that there are no qualifying circumstances in homicide. Or, THEFT is included in ROBBERY. The only missing element in theft is violence or intimidation. Or, LESS PHYSICAL INJURY is included in SERIOUS PHYSICAL INJURY.

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In that case, the case will not be dismissed. Just convict the accused of the crime proven which is included in the crime charged. Such that if you are charged with murder, you can be convicted for homicide. Q: Suppose the accused is charged with homicide and what was proven is murder. So it is the other way around. What is the correct procedure? A: Convict him for the crime charged. Do not dismiss the case. Although the crime proved (murder) includes that which is charged (homicide), a person cannot be convicted of a more serious offense than that charged. The accused can only be convicted for homicide and the qualifying circumstances of murder should be treated only as an ordinary aggravating circumstances. The same is true with theft and robbery. [c.f. discussions on Section 8, Rule 110] We will now go to some important cases. VINO vs. PEOPLE OF THE PHILIPPINES 178 SCRA 626 FACTS: Mr. Acelar is accused of murder as principal by direct participation. After trial, it was established that Mr. Acelar is only an accessory. ISSUE: Can a person accused of murder as a principal may be convicted as an accessory? HELD: YES, a person charged with an offense as principal maybe convicted as an accessory because the greater responsibility includes the lesser responsibility. Accessory is a lesser degree of participation. This is not a case of a variance between the offense charged and the offense proved. Here, the accused was charged with murder and what was established by evidence was also murder. There is here no mistake in charging the proper offense. The variance is in the participation of the accused in the commission of the crime which is not covered by any specific provision. What is covered by the rules is when there is a mistake in charging the proper offense, or when there is a total mistake because the crime was never committed. Q: What is the difference between malversation and technical malversation? A: Although both crimes are committed by public officers, malversation is punishable under Article 217 of the RPC, whereas, technical malversation is not referred as such in the RPC. Technical malversation is denominated as Illegal Use of Public Funds under Article 220 of the RPC. EXAMPLE: Technical malversation/Illegal Use of Public Fund is when a public officer uses funds appropriated for a certain public purpose (let’s say, for the construction of a school building) for another public purpose (like widening or cementing of roads.) PARUNGAO vs. SANDIGANBAYAN 197 SCRA 173 FACTS: A public officer was charged with technical malversation of public funds or property. The trial court found that the crime committed is not technical malversation. It is more of malversation. ISSUE: May a person, charged with technical malversation under Article 220 of the RPC, be found guilty of malversation under Article 217? HELD: NO. He cannot be convicted of malversation because there is no similarity between these two crimes. “In malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In technical malversation, the public officer applies public

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Rule 120 Judgment

funds under his administration not for his or another’s personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.” “Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information.” “The Sandiganbayan therefore erred in not ordering the filing of the proper information against the petitioner, and in convicting him of technical malversation in the original case for malversation of public funds. Ordinarily, the court’s recourse would be to acquit the petitioner of the crime of illegal use of public funds without prejudice, but subject to the laws on prescription, to the filing of a new information for such offense.” “Considering however that all the evidence given during the trial in the malversation case is the same evidence that will be presented and evaluated to determine his guilt or innocence in the technical malversation case in the event that one is filed and in order to spare the petitioner from the rigors and harshness compounded by another trial, not to mention the unnecessary burden on our overloaded judicial system, the Court is acquitted the accused of the crime of illegal use of public funds.” But Justice Feliciano dissented, “Why question the procedure used for violation the law?” Anong klaseng decision ito? Even before filing the correct information, the SC already ruled that you are innocent? According to him, the correct procedure is not to dismiss both cases but to acquit the accused of the original complaint of technical malversation and require the filing of a new information charging the proper offense (malversation). So this is one of the rare cases where the SC decided not to be very technical and went straight to the decision. Siguro the SC would like to save time. Q: If a person is charged with rape, can he be convicted of qualified seduction? Is qualified seduction included in rape? A: It seems that the elements are different. In rape, there is no consent in the sexual intercourse. But in seduction, there is consent although there is abuse of authority, relationship or there is deceit. But in the 1993 case of PEOPLE vs. SUBING-SUBING 228 SCRA 168 HELD: “A person charged with rape can be convicted of qualified seduction if the latter though not alleged in the complaint, appears in the victim’s affidavit.” It seems that there is something wrong here; the complaint says rape, but the victim’s affidavit says qualified seduction. However the SC says it is fine. It is tantamount to the same thing: not found in the complaint but found in the victim’s affidavit. This is another queer decision of the SC. PECHO vs. SANDIGANBAYAN 238 SCRA 116 FACTS: There was somebody who imported highly taxable items. Obviously, he had some connections with the Bureau of Customs. He declared his items different form which he brought, so the taxes are less. The obvious intention it to cheat the government of the correct amount of taxes. He prepared the import entry declaring false information or entries. However, the Collector of Customs ordered a spot inspection. So the attempt did not succeed. The importer, together with the Customs people were charged with attempted violation of the Anti-Graft Act. So, there was an attempt to cause undue injury to the government by depriving it of its proper taxes. ISSUE: Can a person charged with a crime punishable under a special law be found guilty instead of a felony in the RPC? Can a crime under the RPC be considered as included in the crime under a special law? HELD: There is no such thing as attempted violation of the Anti-Graft Act. The attempted, frustrated and consummated stages only apply to felonies in the RPC. Under crimes punishable by a special law, you only punish the consummated stage. You do not

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Rule 120 Judgment

punish the attempted and frustrated stages unless the special law says so. Since there was no injury caused to the government due to the time discovery, there was no violation of the Anti-Graft Act. However, they made false entries, thereby committing falsification. Therefore, they can be convicted of falsification of public or commercial documents. So in this case, it started as attempted violation of the Anti-Graft Act (special law) and ended up as a conviction for falsification under the RPC. A crime under the RPC was considered as included in the crime malum prohibitum PEOPLE vs. VERZOSA 294 SCRA 466 [1998] FACTS: Appellants were charged for violating PD 532 – Anti-Piracy And Anti-Highway Robbery Law Of 1974. ISSUE: Can a person charged for violating a special law be found guilty for a crime of robbery with homicide under the RPC? HELD: YES. What appellants committed is the crime of robbery with homicide, which is distinct from the offense covered by P.D. 532 which punishes, among others, indiscriminate highway robbery. “Nonetheless, the designation of the crime in the information as “highway robbery with homicide (Violation of PD 532)” does not preclude conviction of the appellants of the crime of robbery with homicide (Article 294 [1] of the RPC). In the interpretation of an information, what controls is not the designation but the description of the offense charged. The crime of robbery with homicide is clearly alleged in the information notwithstanding its erroneous caption. It is an offense necessarily included in that with which they were charged.”

SEC. 6. Promulgation of judgment.– The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court. The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable

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cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (6a) Alright. Promulgation is where the accused is parusahan na or acquitted. It consists of the reading of the decision in the presence of the accused. This is one stage of the criminal proceeding where the presence of the accused is generally required. The other instance is during the arraignment. It is not necessary that the promulgation be made before the very same judge who rendered the decision. Example: The RTC of Davao has many branches. Suppose the promulgation will be made in the RTC Branch 8, but on the date of promulgation, the judge thereof got sick. Q: Can the decision of RTC Branch 8 be promulgated before the judge of RTC Branch 9? A: YES, a decision rendered by one branch of a court may be promulgated before another branch of the same court precisely because it is the same court although of different branches. Section 6, reads: “The judgment is promulgated xxx in the presence of xxx ANY JUDGE of the court in which it was rendered.” Do not confuse this on what happened in the 1993 case of PEOPLE vs. CFI OF QUEZON BRANCH 10 227 SCRA 457 FACTS: Accused was charged criminally in the RTC Branch 10 presided by Judge A who tried the case but retired without deciding the case. Meanwhile, Judge B, presiding judge of Branch 3 was designated temporarily to take over Branch 10 and among the cases submitted to him for decision was the undecided case of the accused. So, he read the records and he wrote the decision on May 22. On June 9, Judge C was appointed presiding judge of Branch 10. He took his oath of office the following day, June 10, terminating automatically the designation of Judge B. With the appointment of Judge C, Judge B was only left with his original sala – Branch 3. On June 20, the deputy clerk of court promulgated the decision of Judge B made on May 22. ISSUE: Was the judgment penned by Judge B, detailed to the vacant branch of the court, but promulgated after the permanent judge has been duly appointed to the vacancy, valid? HELD: YES. It is valid. Judge B did not retire. He is still in the SAME court although in another branch. “It is not necessary that Judge B be the presiding judge of Branch 10 at the time his decision was promulgated since even after the expiration of his temporary designation at Branch 10 he continued to be an incumbent of Branch 3. After all, the RTC is divided into several branches, each of the branches is not a court distinct and separate from the others. Jurisdiction is vested in the court, not in the judges, so that when a complaint or information is filed before one branch or judge, jurisdiction does not attach to said branch of the judge alone, to the exclusion of the others.” “Indeed, it would have been different altogether if the judge whose decision was promulgated had, prior to its promulgation, died, resigned, retired, been dismissed, promoted to a higher court, or appointed to another office with inconsistent functions. Then, he would no longer be an incumbent member of a court of equal jurisdiction, and his decisions written thereafter would be invalid.”

Q: In places where there is only one branch of the RTC, no other sala, who promulgates the decision in case of the absence of the judge? A: The clerk of court. Under Section 6, “When the judge is absent or outside the province or city, the judgment may be promulgated by the CLERK OF COURT.”

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Q: Suppose the accused has several cases in different places. Like for example he has a case in Davao and another in Cebu. After the trial in Davao, he was sent to Cebu for another trial. In the meantime, tapos na yung sa Davao, promulgation na lang, but the accused is in Cebu. What will happen if there will be a promulgation in the Davao case? A: Under Section 6, the Davao court will send the decision to the RTC Executive Judge of Cebu and let it be promulgated there in the presence of the accused. Now, a new clause is inserted in Section 6 which provides that “if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.” So in the previous example, if the accused is charged (in Davao) of murder but later convicted for homicide, the RTC Executive Judge of Cebu has no power to entertain any application for bail if the accused wanted to appeal the conviction. Such application can only be filed and resolved by the appellate court. This is similar to Section 5 of Rule 114 on Bail – x x x x However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. The above provision was taken and modified in the case of OMOSA vs. CA (266 SCRA 281 [1997]) Q: Is there such a thing as promulgation by proxy? A: YES. A decision may be promulgated even without the presence of the accused but ONLY if the conviction is for a light offense. Generally, promulgation is by personal appearance. However under the Section 6, “if the conviction is for a light offense, the judgment may be pronounced in the presence of his COUNSEL or REPRESENTATIVE.” PEOPLE vs. PRADES July 30, 1998 HELD: “In the Supreme Court and the Court of Appeals, the judgment is promulgated by merely filing the signed copy thereof with the Clerk of Court who causes true copies of the same to be served upon the parties, hence the appearance of the accused is not even required there as his presence is necessary only in the promulgation of the judgments of trial courts.”

Q: Is the presence of the complainant required during the promulgation? A: NO. There is no rule requiring a judge to notify the complainant of the date of promulgation of judgment in criminal cases. What the Rules of Court particularly Section 6, Rule 120 requires is that the promulgation be made in the presence of the accused. (Ramirez vs. Macandog, 144 SCRA 462) Q: Is the presence of the counsel of the accused required during the promulgation? A: NO. The Rules of Court does not require the presence of counsel for the validity of the promulgation. The accused is not required to be present at the promulgation if the conviction is for light offense, in which case, his counsel or representative may appear in his behalf. But definitely, in any case, the promulgation is valid even the counsel does not appear thereat. (Pangilano vs. Nuevas, 152 SCRA 158) Q: What happens if the accused was tried in absentia? Or before the promulgation he escaped or jumped bail? A: Under Section 6, the proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address.

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In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or through his counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. So there are six (6) types of promulgation of judgment under Section 6: 1.) Ordinary judgment - promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. This applies only to trial courts (People vs. Prades, supra); 2.) Promulgation by the Clerk of Court - when the judge is absent or outside the province or city; 3.) Promulgation by the Executive Judge - If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment; 4.) Promulgation in absentia - If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address; 5.) Promulgation by recording the judgment – in case the accused fails to appear at the scheduled date of promulgation of judgment despite notice.

SEC. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a) Q: May judgement of conviction be modified or set aside? A: YES, for as long as: a. the judgement has not yet become final, or b. appeal has not been perfected Take note that only a judgment of conviction can be modified. A judgment of acquittal cannot be modified. It is only upon motion of the accused. Q: How about upon motion of the prosecution? A: It would seem under the rules, that it is only the accused who is given that privilege of moving to modify the judgement and set it aside. There is an identical provision here that we have already taken up before – about the judgment of conviction which may be set aside before it becomes final. Read Section 5, Rule 116 on Arraignment and Plea: Withdrawal of improvident plea of guilty. – At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. (5) So even if you plead guilty, and it is not a capital offense and there is now a judgment sentencing you because of your plea, you can still change your mind by changing your plea from guilty to not guilty. But you have to file a motion to set aside before the judgment of conviction becomes final.

on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 120 Judgment

Q: When does the judgement in a criminal case become final? A: It DEPENDS: a. If it is a judgement of ACQUITTAL – immediately executory after promulgation of judgment because it cannot be changed anymore. b. If it is a judgment for CONVICTION: 1. After the lapse of the period for perfecting an appeal (2nd part of Section 7). So 15 days generally. EXCEPT when the DEATH penalty is imposed. That is now inserted in the new Rules because even if the accused will not appeal, there is an automatic review. So the rule that when the period to appeal has expired, the judgment will become final, will NOT apply in death penalty cases. However, the lapse of the period to appeal and no appeal is perfected, is not the only instance where the judgment of conviction becomes final; 2. Even within the period to appeal, that is when the sentence has been partially or totally satisfied or served. For example Charles has been sentenced to 10 days of Arresto Menor and he has already served it. Or Charles has been sentenced to pay a fine of P100 and he pays it. Wala na! Final na iyan! Because he has decided to serve his sentence, it has become final. We do not have to wait for 15 days; 3. When the accused has waived in writing his right to appeal; 4. When after conviction, the accused applies for probation (this is based on the probation law). When Charles applies for probation, he is waiving his right to appeal and he is accepting the judgement of conviction. Take note, however, that in these instances, when the judgment of conviction becomes final, even before the lapse of 15 days, what the law means is that what has become final is the criminal aspect. The civil aspect of the case does NOT become final after the lapse of 15 days. And these instances do not apply when the penalty imposed is death because of the automatic review of the Supreme Court. I met this problem before where the judgment convicted the accused and the trouble is that judgment forgot to impose civil liability. Nalimutan talaga! And there was no reservation or waiver so that the court should have imposed the civil aspect. The trouble is, after the promulgation, the accused started to serve his sentence the following day. But within the period of 15 days, we filed a motion for reconsideration to complete the judgment because under Section 1 of this Rule, the imposition of the proper civil liability must be included. And Section 2 also provides that the civil liability should be enforced unless the enforcement of civil liability in a separate civil action has been reserved or waived. The judge acknowledged and admitted that he overlooked the civil liability. He said that he is ready to modify the judgment to include the civil liability which he forgot. But the judge said, the trouble is that he can no longer do it because the accused has already started serving his sentence after promulgation, and from that moment, the judgment has become final. So he said, “how can I amend my judgment kung final na?” I told him, what became final was the criminal aspect, the civil aspect cannot become final until after the lapse of 15 days. Sabi ng judge, “Are you sure? Can you sight a case which says so? Because my researcher said na hindi pwede.” Yes, according to the SC in one case, “…as long as the period for appeal has not yet expired, even if the judgment has become final by service of sentence or waiver of appeal, the trial court may still modify its judgment as to its civil aspect.” So what is final is the criminal aspect and NOT the civil aspect. Because if the offended party cannot claim civil liability kasi inunahan ng accused ng pagserve ng sentence, there is something unfair there no. SEC. 8. Entry of judgment. – After a judgment has become final, it shall be entered in accordance with Rule 36. (8)

on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 120 Judgment

Rule 36 is entitled, “Judgments, Final Orders and Entry Thereof.” While Rule 36 falls under the subject of Civil Procedure, some of its provisions may be applied in criminal procedure. SEC. 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. – Nothing in this rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. (9a) The suspension of sentence, probation or parole are governed by substantive law such as the Indeterminate Sentence Law and the Probation law. These laws have never been modified or affected by the Rules of Court. SPACE-FILLER #7:

Jesus, Moses and an old bearded man were playing golf. On the first tee, Moses shanked his ball into a lake. He parted the water and hit his ball onto the green. Jesus teed off next, hitting his ball into another water hazard. But he walked on the water and stroked his ball just short of the cup. The old bearded man stepped up and hit the ball with tremendous force, but hooked it badly. The ball bounced off the clubhouse roof, rolled down a hill into a pond and came to rest on a lily pad. A frog hopped over to the ball and picked it up. Then an eagle swooped down, snatched the frog and flew over the green. The frog dropped the ball and it rolled into the cup for a hole-in-one. Moses turned to Jesus and said, “I hate playing golf with your dad!” Source: Reader’s Digest, November 2000