590 Phil. 88


[ G.R. No. 141854, October 15, 2008 ]




Challenged in this petition for certiorari under Rule 65 of the Rules on Civil Procedure is the July 20, 1998 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 45954, which affirmed the May 10, 1993 Decision[2] of the Regional Trial Court, Branch 166, Pasig City, in Criminal Case No. 87229 convicting petitioner of Theft under Articles 308 and 309 of the Revised Penal Code (RPC).

On June 25, 1991, petitioner Orlando L. Apostol (Apostol), together with America F. Floro (Floro), was indicted for the crime of Qualified Theft. The Information reads:
The undersigned State Prosecutor accuses Orlando Apostol y Lim alias "Orlan" and America Floro y Ferma alias "Ameer" of the crime of Qualified Theft, committed as follows:

That [on] or about the period from June 7 to June 8, 1991, in the Municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, to wit: Orlando Apostol y Lim being then employed as driver and America Floro being then employed as stay-in, conspiring and confederating together with Juanito Abanto alias Juan being then employed as houseboy and Emma Oliva alias Baby, at-large, being then employed as housemaid of Avelina Floro y Cabrera, and all of them mutually helping and aiding one another, and as such being trusted persons and having trust and confidence reposed upon them by their employer, with intent to gain and without the knowledge and consent of the owner thereof, with abuse of confidence, did then and there willfully, unlawfully and feloniously take, steal and carry away the following items:

Cash money
P 40,000.00

$1,700.00 U.S. Dollars or its equivalent Philippine currency

One (1) set colored stones (diamonds)
One (1) set pearly bagets (diamonds)
Two (2) pcs. Tiffany ring (diamonds)
One (1) ring emerald cut (diamonds)
One (1) set gold pendant & bracelet
One (1) dangling perfect earring with diamond stones
One (1) diamond grape earrings
One (1) men's ring domino princes
One (1) men's gold ring
One (1) set earrings princess cut with baget
One (1) solid gold bracelet for lady
One [1] solo [T]ifanny ring 3K
One (1) maquez ring 4K
One (1) set pearl with one green emerald
One (1) [cocktail] ring plenty of stones
One (1) small pack of loose diamond stones
One (1) gold chain bracelet for men
One (1) gold necklace with gold pendant
Two (2) pieces of small solid gold earrings
One (1) men's gold bracelet
Two (2) pieces earrings oreolla

all in the total amount of P1,780,090.00 belonging to Avelina Floro y Cabrera, to the damage and prejudice of the said owner thereof in the aforementioned amount of P1,780,090.00.

Subsequently, Apostol and Floro posted bail and were granted provisional liberty.[4]

During the arraignment on July 24, 1991, only Floro pleaded not guilty to the offense charged while Apostol failed to appear.[5] As prayed for by the prosecution, the trial court ordered the confiscation of Apostol's cash bond and issued a bench warrant for his arrest.[6]

Upon Apostol's motion, however, the warrant of arrest was lifted.[7] On September 11, 1991, Apostol entered his "not guilty" plea.[8]

Trial ensued after an Amended Information was filed, formally including from the title of the criminal action Juanito Abanto and Emma Oliva, who are still at-large.[9]

The prosecution presented testimonial and documentary evidence. On the part of the defense, only Floro argued her case. Apostol attended the hearings for the presentation of prosecution evidence on November 6, 1991, January 23, 1992 and May 6, 1992 but he was nowhere to be found thereafter despite notices sent to his address on record. Worse, his counsel de parte, Atty. Orlando M. Salatandre, Jr., even began his absence in the hearings on April 23, 1992 and May 6, 1992. As a result, the trial court considered Apostol to be at-large and deemed to have waived the right to adduce evidence in his behalf.[10]

The trial court promulgated its Decision[11] on May 10, 1993, holding only Apostol guilty of Theft under Arts. 308 and 309 of the RPC. The decretal portion of the Decision states:
WHEREFORE, the court finds accused Orlando Apostol [y] Lim @ Orlan guilty beyond reasonable doubt, as principal, of the crime of theft and is hereby sentenced to suffer the indeterminate penalty of Twelve (12) years of Prision Mayor, as minimum[,] to Twenty (20) years of Reclusion Temporal, as maximum[,] and indemnify Avelina Floro the sum of US $1,700.00, or its equivalent in pesos, and P34,000.00, plus the costs of suit.

On the ground of reasonable doubt, accused America Floro y Ferma is acquitted of the crime charged in the information.

On October 26, 1997, or more than four (4) years after the trial court Decision was promulgated in absentia, Apostol was arrested.[13]

On November 4, 1997, Apostol filed an Urgent Motion for Reconsideration of Judgment[14] with Entry of Appearance[15] of his new counsel, Atty. Gilbert M. Fabella, alleging that his conviction based on trial in absentia unjustifiably violated his constitutionally protected right to due process. Apostol contended that he was not duly notified of the trial dates and, consequently, failed to cross-examine the witnesses and present controverting evidence because Atty. Salatandre, aside from not appearing in any of the scheduled hearings, grossly neglected to inform the court that he (Apostol) had already transferred residence.

The prosecution interposed no opposition to the motion but the trial court denied the same. It held:
Accused's motion is untenable. The record shows that:
  1. On September 11, 1991, accused Orlando Apostol, duly assisted by counsel, pleaded not guilty to the crime charged in the Information.

  2. On November 6, 1991, when Efren Hilao, first witness of the prosecution[,] testified, accused Apostol and counsel were present.

  3. On January 23 and May 6, 1992, when private complainant Avelina Floro testified, Apostol was present.

  4. On June 24, 1992, Apostol was considered as having waived his right to cross-examine Avelina Floro because of his failure to appear, despite due notice.

  5. On July 1, 1992, when Jerome Floro testified, Apostol was absent, despite subpoena sent to him at his given address.

  6. On August 20, 1992, Florante [Vera] and [Avelina] Floro testified, Apostol failed to appear, despite subpoena sent to him at his given address.

  7. On October 8, 1992, when Gerardo Medina testified, Apostol failed to appear, despite subpoena sent to him at his given address.

  8. On November 26, 1992, when co-accused America Floro testified, Apostol failed to appear, despite subpoena sent to him at his given address.

  9. On January 14, 1993, the case was scheduled for reception of Apostol's evidence but he failed to appear, despite subpoena sent to him at his given address, so that he was considered as having waived his right to present evidence and the case was deemed submitted for decision.

  10. On June 30, 1993, when the judgment was promulgated, Apostol failed to appear, despite subpoena sent to him at his given address.

  11. Apostol had remained at large until he was arrested by the police on October 26, 1997, by virtue of a warrant of arrest issued by the court.

  12. The court has already committed Apostol to the Bureau of Corrections, Muntinlupa City, to serve his sentence.

    Clearly, [every time] there was a hearing[,] accused Apostol was either personally notified or a subpoena sent to him at his given address. Apostol's failure to appear, despite subpoena sent to him at his given address, was due to his own fault because he went into hiding and remained at large until his apprehension.[16]
Apostol then filed a Petition for Certiorari and Prohibition with Prayer for the Immediate Issuance of a Preliminary Injunction and/or Restraining Order[17] before the Court of Appeals, claiming that the trial court acted with grave abuse of discretion amounting to lack of jurisdiction in rendering a decision that defeats his constitutional rights, to wit: (a) the right to be duly notified in case of trial in absentia, with the consequent rights to meet the witnesses face to face and to secure their attendance and the production of evidence in his behalf; and (b) the right to bail.

On July 20, 1998, the Court of Appeals dismissed the petition.[18] It opined that Apostol's constitutional rights were not violated because his non-appearance in the subsequent hearings without any legal explanation was an evident manifestation of his intention to jump bail. Adopting the ruling in People v. Valeriano,[19] which was cited by the Office of the Solicitor General, the Court of Appeals concluded:
It has been held that one who jumps bail can never offer a justifiable reason for his non-appearance during the trial. Accordingly, after trial in absentia, the court can render judgment in the case and promulgation may be made by simply recording the judgment in the criminal docket with a copy thereof served upon his counsel, provided that the notice requiring him to be present at the promulgation is served through his bondsmen or warden and counsel.[20]
Through a new counsel, Escano and Partners Law Offices, Apostol moved for reconsideration of the Decision, hinging primarily on the alleged negligence and irresponsibility of Atty. Salatandre which violated his constitutional and statutory rights.[21] The motion was denied.[22]

Hence, this petition.

Incidentally, however, following this Court's resolution to give due course to the petition and to require the parties to submit their respective memoranda, which order was timely complied with, Apostol, assisted by Paralegal Officer Angelito A. Salumbides, Jr., filed a Notice of Withdrawal of Appeal on April 17, 2007.[23] To ascertain that it had been voluntarily and duly executed, the Court resolved to require Mr. Salumbides to confer with Apostol as to the legal implications of the notice, and to hold in abeyance any action pending compliance. Subsequently, in both of his letters dated October 1, 2007 and November 19, 2007, Mr. Salumbides replied that Apostol is no longer withdrawing his appeal and, therefore, requesting for the nullification of the notice.

Before this Court, Apostol argues that:
  1. The instant petition for certiorari is timely and proper;

  2. The negligence and irresponsibility of Atty. Salatandre violated his human rights;

  3. The trial court committed grave abuse of discretion when it admitted in evidence "the fruits" of his illegal arrest; and

  4. His guilt was not proven beyond reasonable doubt.[24]
Apostol expressly states that he could no longer appeal his case when the judgment of the trial court became final in 1997 and that neither does he have any plain, speedy and adequate remedy available; hence, certiorari is proper in the instant case.

According to him, due consideration must be given on the issue that it was the inexcusable and unjustified negligence and the irresponsible acts of Atty. Salatandre which led to the gross violation of his constitutional rights as an accused. Being a layman who is unaware of legal technicalities, he said to have relied on his counsel's constant assurance that everything would be taken care of and that there would be no need to attend the proceedings as he would just be informed of the developments of the case. It turned out, however, that despite the knowledge of his change of address, Atty. Salatandre did not relay the matter to the trial court. In addition, Apostol claims that he was totally abandoned by his counsel, who purportedly did not inform him that he was no longer interested in representing his cause. He, therefore, urges this Court that his case should be an exception to the rule that clients are bound by the mistakes of their counsels since his right to a fair trial would be prejudiced and that his liberty would be deprived by mere technicality.

While Apostol acknowledges that a number of counsel de oficio were appointed during the hearing dates when neither he nor his counsel attended, he maintains that they had no ample opportunity to exhaustively study his case, not to mention the lack of continuity in handling it so as to ensure familiarity therewith. Worse, Apostol argues, was the trial court's haste to cause his conviction, as it did not exert efforts to ascertain the reason for his or his counsel's continued absence, to show that the notices were indeed received, or even to sanction his counsel for negligence.

It is further contended that Apostol was arrested without a valid warrant of arrest as his case does not fall under Section 5, Rule 113 of the old Rules on Criminal Procedure which authorized valid warrantless arrest. As the crime happened on June 7, 1991, and the arrest was made only three days thereafter, he avers that it could not possibly be said that he was "actually committing" or "attempting to commit" a crime or that it was "just been committed." He points out that if the police or the private complainant had the suspicion of his participation in the offense, they should have filed a complaint with the Office of the Prosecutor for the conduct of preliminary investigation, but they did not.

Purportedly based on records, Apostol also maintains that he was not accorded the rights of an accused during custodial investigation, as expressly mandated in the 1987 Constitution and Republic Act No. 7438. Particularly, he notes that prosecution witness Efren Hilao of the San Juan Police admitted during his cross-examination that he (Apostol) was not informed of his rights to remain silent and to have an independent and competent counsel of his choice. Thus, conformably with Section 12, Article III of the Constitution, any confession or admission obtained is inadmissible in evidence against him.

Moreover, Apostol stresses that the trial court erred in relying on the testimonies of Avelina Floro, Jerome Floro, Florante Vera and Efren Hilao since all of them testified on matters not of their own personal knowledge, hence, hearsay. He likewise asserts that being "a person not in possession of the full intellect of a person her age," his co-accused, Floro, was merely coached to absolve her and pin down Apostol. Her susceptibility to influence and the inconsistencies in her statements are, for Apostol, enough reasons not to give much weight on her testimonies.

Lastly, Apostol remarks that if flight is indeed an indication of guilt, the trial court should have acquitted him of the crime charged. He emphasizes that despite having the opportunity to flee on his scheduled day-off at the time, he did not leave the house of private complainant unlike Floro, Juanito Abanto and Emma Oliva, who all immediately fled therefrom.

The petition is denied. The reglementary period within which to file an appeal, which should have been the proper legal recourse of Apostol, had already expired.

A basic requisite of the special civil action of certiorari, which is governed by Rule 65 of the Revised Rules of Civil Procedure, is that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Certiorari cannot be used as a substitute for a lost or lapsed remedy of appeal.[25] As this Court held:
x x x [A] petition for certiorari cannot be a substitute for an appeal from a lower court decision. Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. The remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for an appeal, especially if one's own negligence or error in one's choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground [therefor] is grave abuse of discretion.

As certiorari is not a substitute for lost appeal, time and again, we have emphasized that the perfection of appeals in the manner and within the period permitted by law is not only mandatory but jurisdictional, and that the failure to perfect an appeal renders the decision of the trial court final and executory. This rule is founded upon the principle that the right to appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the manner and in accordance with the provisions of the law. Neither can petitioner invoke the doctrine that rules of technicality must yield to the broader interest of substantial justice. While every litigant must be given the amplest opportunity for the proper and just determination of his cause, free from constraints of technicalities, the failure to perfect an appeal within the reglementary period is not a mere technicality. It raises a jurisdictional problem as it deprives the appellate court of jurisdiction over the appeal.[26]
There is no compelling reason to relax the rule that the negligence of counsel binds the client,[27] particularly because petitioner is not entirely blameless.

Apostol wants this Court to believe that he went on with his life in view of Atty. Salatandre's convincing assurance: he worked with his father as a subcontractor of the Floros and later as a real estate agent, which resulted to his transfer of residence, and that, as the number of years passed (1992 to 1997), he presumed that the case had already been dismissed since he had seen the Floros in some social gatherings without them mentioning anything about it. He was, thus, shocked upon his arrest that he tried to get in touch with Atty. Salatandre whom he could no longer locate.[28]

The lame justifications do not persuade. This Court cannot make a conclusive finding that there was excusable negligence on the part of Atty. Salatandre which prejudiced Apostol's right to appeal his conviction. To do so would be speculative.

What is obvious is that Apostol was negligent in not exercising due diligence to keep himself updated of the developments of his pending criminal case. That Atty. Salatandre had not communicated for a long period of time and that the trial court suddenly stopped furnishing any notice of hearing should have alarmed him that something is amiss with the case. By that time, Apostol himself should have initiated moves to locate the whereabouts of Atty. Salatandre or should have gone to court and inquire on the progress of his case. Yet he did not. It is commonsensical that he should have taken an active role considering that the criminal action would imperil his much valued liberty.

While this Court has recognized that a non-lawyer litigant is not expected to be familiar with the intricacies of the legal procedures,[29] a layman nonetheless must not be allowed to conveniently profit from his improvident mistakes. Thus, it has been equally stressed that litigants represented by counsel should not expect that all they need to do is sit back, relax and await the outcome of the case;[30] instead, they should give the necessary assistance to their counsel for what is at stake is ultimately their interest.[31]

Considering the foregoing, it would be unnecessary to proceed any further on the factual issues raised in this petition. As a legal recourse, the special civil action of certiorari is a limited form of review.[32] The jurisdiction of this Court is narrow in scope; it is restricted to resolving errors of jurisdiction, not errors of judgment.[33] Indeed, as long as the courts below act within their jurisdiction, alleged errors committed in the exercise of their discretion will amount to mere errors of judgment correctable by an appeal or a petition for review.[34]

WHEREFORE, the July 20, 1998 Decision of the Court of Appeals in CA-G.R. SP No. 45954 sustaining the May 10, 1993 Decision of the Regional Trial Court, Branch 166, Pasig City, in Criminal Case No. 87229 is hereby AFFIRMED.

No costs.


Puno, C.J., (Chairperson), Carpio, Corona and Leonardo-De Castro, JJ., concur.

[1] Penned by Associate Justice Corona Ibay-Somera, with Associate Justices Oswaldo D. Agcaoili and Martin S. Villarama, Jr., concurring.

[2] Penned by Judge Jesus G. Bersamira.

[3] Records, pp. 1-2.

[4] Id. at 10-14, 18-21.

[5] Id. at 26.

[6] Id. at 27, 32.

[7] Id. at 29-31.

[8] Id. at 37.

[9] Id. at 47-48.

[10] Id. at 114.

[11] Id. at 140-144.

[12] Id. at 144.

[13] Id. at 147.

[14] Id. at 151-160.

[15] Id. at 161.

[16] Id. at 162-163.

[17] CA rollo, pp. 1-18.

[18] Id. at 68-85.

[19] G.R. Nos. 103604-05, September 23, 1993, 226 SCRA 694.

[20] CA rollo, pp. 84-85.

[21] Id. at 88-109.

[22] Id. at 134-135.

[23] Rollo, p. 390.

[24] Id. at 325.

[25] See Tolentino v. People, G.R. No. 170396, August 31, 2006, 500 SCRA 721, 724; Villanueva v. Court of Appeals, G.R. No. 167726, July 20, 2006, 495 SCRA 824, 833; and Suyat, Jr. v. Torres, G.R. No. 133530, October 25, 2004, 441 SCRA 265, 274.

[26] David v. Cordova, G.R. No. 152992, July 28, 2005, 464 SCRA 384, 394-395.

[27] See Friend v. Union Bank of the Philippines, G.R. No. 165767, November 29, 2005, 476 SCRA 453, 457.

[28] Rollo, pp. 10, 323.

[29] See Hilario v. People, G.R. No. 161070, April 14, 2008, citing Telan v. Court of Appeals, G.R. No. 95026, October 4, 1991, 202 SCRA 534, 541.

[30] Friend v. Union Bank of the Philippines, supra note 27 at 459.

[31] See Dissenting Opinion of Justice Panganiban in Marcos v. Sandiganbayan (357 Phil. 762, 836 [1998]).

[32] See Almuete v. Andres, 421 Phil. 522, 531 (2001).

[33] See Tolentino v. People, G.R. No. 170396, August 31, 2006, 500 SCRA 721, 724 and Suyat, Jr. v. Torres, G.R. No. 133530, October 25, 2004, 441 SCRA 265, 274-275.

[34] Id.

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