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[G.R. No. 141638. July 17, 2000]
SPS. PATERNO ESCUDERO, et al. vs. CA, et al.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 17 2000.
G.R. No. 141638 (Spouses Escudero, et al. vs. Court of Appeals, Regional Trial Court, Branch 54, Lapu-Lapu City and People of the Philippines.)
Petitioners are the accused in Criminal Case No. 012432-L for the crime of Estafa punishable under paragraph 1, Article 316 of the Revised Penal Code before Regional Trial Court, Branch 54, Lapu-Lapu City. After the prosecution rested its case, the accused filed a motion to dismiss on the ground that the crime charged had already prescribed.
The alleged second deed of sale (Exh. C), which the prosecution believes to have constituted the crime of estafa, was allegedly executed on June 30, 1983 and duly registered with the Register of Deeds on August 1, 1983. The complaint was filed with the prosecutor on November 6, 1992 and the Information was filed on March 22, 1983. The petitioners (accused therein) that under Article 90 of the Revised Penal Code, crimes punishable by arresto mayor prescribed in five years. Here, since the case was instituted nine (9) years after the discovery of the crime, the crime has already prescribed.
The prosecution opposed the motion stressing that the prescriptive period in this case is to be determined on the basis of the fine imposable. Considering that the fine is more than six thousand pesos (P6,000.00), prescription, according to Article 90 in relation to Article 26 of the Revised Penal Code, is fifteen (15) years. Thus, the crime charged has not yet prescribed.
In an Order dated 15 March 1999, the Regional Trial Court, acting upon the motion, dismissed the case. However, upon motion for reconsideration filed by the prosecution, the trial court in an order dated 30 April 1999 set aside its previous order of dismissal and set the case for trial for the presentation of the evidence for the defense. The accused filed a motion for reconsideration of the Order dated 30 April 1999. The trial court denied the motion. Not satisfied, the accused filed a petition for certiorari under Rule 65 with the Court of Appeals.
On January 20, 2000, the Court of Appeals rendered a decision denying the petition and affirming the ruling of the trial court that prescription of the crime had not set in. Hence, the accused is now before this Court through a petition for review on certiorari under Rule 45.
The legal issues presented before this Court are the following:
1. Whether or not the crime of Estafa under Paragraph 1, Article 316 of the Revised Penal Code has already prescribed.
2. Whether or not the dismissal by the Regional Trial Court constituted double jeopardy?
We hold in the negative on both issues.
ON THE FIRST ISSUE:
In essence, the issue of prescription of the crime hinges on the correct interpretation of Article 90 in relation to Article 26 of the Revised Penal Code. If the proper prescriptive period for the crime of Estafa under paragraph 1, Article 316 of the Revised Penal Code is five years from the discovery of the crime as argued by the petitioners, the crime has already prescribed. On the contrary, if the prescriptive period is fifteen (15) years as ruled by the trial court and affirmed by the Court of Appeals, then the crime charged has not yet prescribed.
To support their claim that the crime has prescribed, the petitioners advanced three arguments:
One, the amount of the imposable fine is still indeterminate as the basis merely of the prosecution for such determination is the allegation in the information but the determination of the fine would still depend on the evidence of the amount of damage which lies on the discretion of the judge.
Two, the classification of fine under Article 26 RPC as afflictive, correctional or light penalty is applicable only if the fine is imposed as single or as an alternative penalty. However, the same provision is silent when the fine is imposed as a compound penalty, such as in the case at bar. Petitioners submit there is no basis for applying the classification of fine as it is only true if the fine is imposed as single or alternative penalty. Article 90 RPC is not applicable since the classification of fine is the function of Article 26 RPC. Article 90 merely provides for the prescription of the crime and not classification.
Three, the highest penalty mentioned in the last paragraph of Article 90 could mean no other than the "graver of the penalties." Imprisonment is graver since it involves deprivation of one's personal liberty in contrast with fine which may be dispensed with where the accused is insolvent except if the judgment itself provides for subsidiary imprisonment for failure to pay fine but even then said imprisonment could not exceed the limitations imposed by law. 1 Petition, pp. 5-6;Rollo, pp. 12-13.
The contentions are without merit.
This Court notes that the penalty for Article 316 (2) 2 Revised Penal Code, Art. 316 provides, thus:
ART. 316. Other forms of swindling. - The penalty of arresto mayor in its minimum and medium periods and fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon:
x x x
2. Any person who, knowing that real property is emcumbered, shall dispose of the same, although such encumbrance be not recorded.
x x x of the Revised Penal Code is the compound penalty of both imprisonment and fine. Corollarily, the last paragraph of Article 90 3 Revised Penal Code, Art. 90 last paragraph (as amended by R.A.. No. 4661 [1996]) provides, thus:
When the penalty fixed by law is compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraph of this article. of the Revised Penal Code provides the rule to be applied in compound penalties. Accordingly, in determining the prescriptive period of a crime punishable by both imprisonment and fine, whichever penalty is the higher should be the basis in computing the period of prosecution. The reason for this is that when the penalty of imprisonment and fine is imposed in the compound, as contradistinguished from a single or an alternative penalty, neither penalty is subordinate to the other. In which case, the higher penalty based on the classification under the Revised Penal Code should be the basis for computing the prescription period of the crime. Article 26 provides the classification, while article 90 indicates when such classification should be applied.
In People v. Crisostomo, 4 5 SCRA 1048, 1053 (1962). we held that the Revised Penal Code contains no provision which states that a fine when imposed in conjunction with an imprisonment is subordinate to the main penalty. In conjunction with imprisonment, a fine is as much a principal penalty as the imprisonment. Neither is subordinate to the other. On the contrary, in the instant case, the fine is higher than the imprisonment because it is afflictive in view of the amount involved and, as stated heretofore, it is the basis for computation to determine the prescriptive period. We conclude, therefore, that where the Revised Penal Code provides a penalty consisting of imprisonment and fine, whichever penalty is the higher, should be the basis in computing the period of prescription.
Under Article 25 of the Revised Penal Code, the penalty of arresto mayor is a correctional penalty. Under Article 26 of the Revised Penal Code, Fine is considered an afflictive penalty if it exceeds six thousand pesos (P6,000.00). The value of the damage caused is nine thousand six hundred ninety-nine pesos) 9,695.00) which represents the consideration of the prior sale. Considering that the fine imposable is the higher penalty, it shall be the basis for computing the prescriptive period of the crime. Thus, the proper prescriptive period for the crime charges is fifteen (15) years.
The alleged Estafa was allegedly committed by the accused-petitioners on 30 June 1983. The deed of sale was recorded with the Register of Deeds on August 1, 1983. The criminal case was instituted on November 6, 1992 upon the filing of the complaint with the prosecutor. 5 See Rules of Court, Section 1, last paragraph, Rule 110; In Francisco v. Court of Appeals , 122 SCRA 483, this Court has ruled to the effect that the filing of a complaint with the fiscal's office also interrupts the period of prescription of the offenses charged. From August 1, 1983 to November 6, 1992, only nine years had elapsed. Since the case was filed within the fifteen-year prescriptive period, the crime charged has not prescribed. Hence, the Court of Appeals committed no reversible error.
ON THE SECOND ISSUE:
Petitioners argue that when the case was dismissed, the order of the trial court to revive the case upon reconsideration such action amounted to double jeopardy. In arguing this point, the petitioners rely on Section 6, Rule 117 of the Rules of Court which provides, thus:
Order sustaining the motion to quash not a bar to another prosecution; exception. An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 3, Subsection (f) and (h) of this rule.
The petitioners further contend that the grounds mentioned as bar to another prosecution are that: first, the criminal action or liability has been extinguished; and, second, the accused has been previously convicted or in jeopardy. Moreover, they stress that the rule on waiver to objection which are grounds of a motion to quash does not apply when prescription becomes a defense and extinguishes criminal liability. 6 Citing Magat v. People, 210 SCRA 21,32 (1991). The petitioners then conclude that the dismissal of a case, even assuming arguendo, it is erroneous, constitutes an acquittal which bars any review or appeal or another jeopardy.
We are not persuaded.
The rule on double jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. 7 Melo v. People, 85 Phil. 766, 768 (1950). The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense. 8 Caes v. Intermediate Appelleate Court, 179 SCRA 54, 59-60 (1989).
It must be noted that an acquittal is different from a dismissal notwithstanding the fact that there may be instances when an order of dismissal of a criminal case amounts to an acquittal. 9 In People v. Salico, 84 Phil. 722, 732 (1949). In this case We explained that the only case in which the word dismissal is commonly but not correctly used, instead of the proper term of acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond reasonable doubt that the defendant is guilty; for is such case, the dismissal is in reality an acquittal because the case is decided on the merits. However, in the case at bar, the dismissal is not an acquittal because is was not based on the merits of the case but on the ground that the crime charged has already prescribed. Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant's guilt beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendants is not guilty of the offense charged. 10 Ibid.
In the case at bar, the dismissal did not constitute a first jeopardy within the purview of the rule against double jeopardy because of two reasons: first, the dismissal was upon motion of, and, hence, with the consent of the accused; and second, the order of dismissal was based on an erroneous finding of prescription of the crime and not on the merits of the case.
It should be stressed that the Motion to Dismiss was filed by petitioners. The dismissal and/or termination of the Estafa case being with their voluntary and express consent, double jeopardy has not, therefore, attached. 11 People v. Gines, 197 SCRA 481 (1991); Que v. Cosico, 177 SCRA 410 (1989); People v. Jardin, 124 SCRA 167 (1983); People v. Pilpa, 79 SCRA 81 (1977); and People v. Cuervo, 104 SCRA 312 (1981). There are only two instances when double jeopardy attaches even if the dismissal of a criminal case was with the express consent of the accused or upon his motion. These are (i) insufficiency of evidence and (ii) denial of the right to a speedy trial. 12 People v. Ban, 239 SCRA 48, 55 (1994); People v. Quizada, 160 SCRA 516 (1988). None of these exceptions is obtaining in the instant case.
The cases cited by the petitioners supporting the argument that an erroneous acquittal bars any review or appeal or another jeopardy are all premised on the fact that the erroneous judgment of acquittal by the trial court was issued on the merit of the case.
The motion to dismiss filed by the petitioners was based on the ground of prescription and not on the alleged insufficiency of the evidence against them. The trial court, then, did not dwell on the merits of the case when it issued its Order dated 15 March 1999. Even the trial court in reconsidering its previous order emphasized in its Order dated 30 April 1999 that the motion to dismiss dated January 8, 1999 was filed by the accused and that the (trial) Court did-not resolve on the merits but on the alleged prescription of the instant case.
In the case at bar, the order of dismissal was not yet final and executory when the motion for reconsideration was filed by the prosecution. The doctrine of double jeopardy does not attach until the period for appeal has expired. The matter relative to the time when jeopardy attaches is largely statutory and Section 7 of Rule 20 of the Rules of Court, in express and plain language, fixes such time at the expiration of fifteen days. 13 People v. Tamayo, G.R. No. L-2233, April 25, 1950. Thus, when the trial court took cognizance of that motion it still had jurisdiction to do so and the action thereon was a continuation of the case, not an appeal thereof or a new trial. In sum, there is no double jeopardy because neither the proceeding in the trial court had terminated with finality at the time when the motion for reconsideration was filed so as to give rise to a first jeopardy nor was there a second jeopardy in the form of an appeal or a new trial. But most significantly, the order of dismissal was not based on the merits of the case.
WHEREFORE, the petition is DENIED. Let this case be REMANDED to the Regional Trial Court, Branch 54, Lapu-Lapu City, for the presentation of the evidence for the defense.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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