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SECOND DIVISION

G.R. No. L-48934 January 16, 1979

ANTONIO A. GUNAY, Petitioner, vs. COURT OF APPEALS, Respondent.

R E S O L U T I O N

AQUINO, J.:

The Court of Appeals in its decision in CA-G.R. No. 19873 Cr., People vs. Antonio Gunay y Andreda promulgated on May 10, 1978, affirmed the trial court's judgment convicting him of homicide and damage to property through reckless imprudence. A copy of that decision was served on defendant-appellant's counsel on May 12, 1978.chanroblesvirtualawlibrary chanrobles virtual law library

On May 19, 1978, his counsel sent by registered mail to the Court of Appeals a motion for the reconsideration of the said decision. That fact was certified to by the postmaster at the provincial capitol of Pasig, Rizal (Annex C of petition). Copies of that motion, also sent by registered mail, were received by the Solicitor General's Office and the Citizens Legal Assistance Office (Annexes D and E of the petition).chanroblesvirtualawlibrary chanrobles virtual law library

However, the original motion was not attached to the record of the case or could not be found in the Court of Appeals. On the assumption that the judgment had become final and executory, entry of judgment was made in that case on May 27, 1978. The record was remanded to the court of origin on July 18,1978.chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals in its resolution of August 28, 1978 (copy received by appellant on September 4, 1978) denied the motion of appellant Gunay for the setting aside of the entry of judgment. The denial was based on the ground that "no motion for reconsideration has been filed" by the appellant.chanroblesvirtualawlibrary chanrobles virtual law library

On September 15, 1978, Gunay filed in this Court a petition praying that the Court of Appeals' resolution of August 28, 1978 be set aside and that, after a review of the Appellate Court's decision, he be acquitted.chanroblesvirtualawlibrary chanrobles virtual law library

It appears that Gunay's motion for reconsideration is now attached to the record of CA-G.R. No. 198730, having been received in the docket section only on September 28, 1978. The Solicitor General recommends that Gunay's motion should be resolved.chanroblesvirtualawlibrary chanrobles virtual law library

We find that the entry of judgment in the Court of Appeals was made under an honest mistake of fact or under the erroneous assumption that Gunay did not file a motion for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, in the interest of justice, the resolution of the Court of Appeals dated August 28, 1978, denying Gunay's motion to set aside the entry of judgment, is hereby reversed. The Court of Appeals is directed to cancel the entry of judgment and to pass upon Gunay's motion for reconsideration. The clerk of court Branch II of the city court of Quezon City is directed to elevate to the Court of Appeals within three days from notice the record of People vs. Gunay, Criminal Case No. 11-112036. No costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.