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[G.R. No. 150299. November 28, 2001]

EMILIANO DELA CRUZ JR. vs. THE COURT OF APPEALS et al.

SECOND DIVISION

Gentleman :

Quoted hereunder, for your information , is a resolution of this Court dated NOV. 28 2001.

G.R. No. 150299 (Emiliano De La Cruz, Jr. vs. The Court of Appeals - Ninth Division and The People of the Philippines.)

Petitioner Emiliano de la Cruz, Jr. was convicted of homicide by the Regional Trial Court, Branch 8, Aparri, Cagayan, together with two other accused. He and one of his co-accused (Ronnie de la Cruz) moved for reconsideration of the decision, but their motion was denied by the trial court. On August 19, 1998, they filed a notice of appeal. However, for failure of petitioner to file his appellant's brief within the reglementary period, the Court of Appeals declared his appeal abandoned and dismissed the same on June 28, 2001.

Petitioner filed a motion for reconsideration alleging that he had not been furnished a copy of the resolution, dated August 23, 2000, requiring him to submit his appellant's brief, it appearing that it had been sent to Aparri, Cagayan when his address is Gattaran, Cagayan.

In its resolution, dated August 22, 2001, the Court of Appeals denied petitioner's motion for reconsideration. It noted that based on the records, the address of petitioner's counsel was Aparri, Cagayan and that petitioner's counsel in fact received a copy of the said resolution on July 13, 2001.

Hence, this petition for certiorari under Rule 65.

Petitioner reiterates his argument that his counsel was never served with a copy of the resolution, dated August 23, 2000, requiring him to file his appellant's brief. He contends that the resolutions, dated June 28, 2001 and August 22, 2001, of the Court of Appeals, dismissing his appeal were issued with grave abuse of discretion amounting to lack of jurisdiction. He alleges that the separate mailing envelopes containing the two copies of the challenged resolutions indicated his address as Aparri, Cagayan with a notation from the Aparri Post Office "Forward to: Gattaran, Cagayan."

The petition has no merit.

The dismissal of petitioner's appeal and the denial of his motion for reconsideration by the Court of Appeals constitutes a final disposition of the case and, therefore, appeal under Rule 45, not a petition for certiorari under Rule 65, is the appropriate remedy (See National Irrigation Administration (NIA) v. Court of Appeals, 318 SCRA 255 (1999)). Under �� 1 and 2 of Rule 45 of the 1997 Rules of Civil Procedure, petitioner can appeal, by filing a petition for review on certiorari, within fifteen (15) days from notice of the resolution denying his motion for reconsideration. In this case, the 15-day reglementary period expired on September 19, 2001. It is obvious that the filing of the present petition is being done to make up for petitioner's failure to appeal. It has been time and again held that a special civil action for certiorari cannot be availed of as a substitute for a lost or lapsed remedy of appeal (People v. Court of Appeals, 199 SCRA 539 (1991)).

In view of the foregoing, we see no need to discuss the argument raised by petitioner.

WHEREFORE, the petition is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court

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