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[G.R. No. 143750. March 30, 2005]

SALILI vs. PEOPLE

Third Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 30 2005.

G.R. No. 143750 (Rey Salili vs. The People of the Philippines.)

Before us is the petition for review on certiorari filed by Rey Salili assailing the Resolution [1] cralaw of the Court of Appeals dated February 29, 2000 in CA-G.R. CR No. 13224, quoted as follows:

"Considering that the copy of this Court's Resolution dated May 14, 1999 sent to accused-appellant himself at his given postal address was returned to this Court with the postal notation moved out: and 'house closed' (pp. 133 and 138, Rollo), service thereof is deemed complete pursuant to Sec. 8, Rule 13 of the 1997 Rules of Civil Procedure.

Considering further the report of the Judicial Records Division that no appellants' brief has been filed this Court RESOLVES to DISMISS the instant appeal pursuant to Sec. 8, Rule 124 of the 1985 Rules on Criminal Procedure.

SO ORDERED."

and its Resolution dated May 25, 2000 denying his motion for reconsideration.

Records show that one Dr. Felix Abay, Sr. filed with the Office of the City Prosecutor of Bacolod City a criminal complaint for estafa against Rey Salili, petitioner herein, docketed as Criminal Case No. BC-I.S. No. 82-40. This case was assigned to Prosecutor Pedro Delfin for preliminary investigation. After finding probable cause, he filed with the Regional Trial Court of Bacolod City an Information for estafa against petitioner, docketed as Criminal Case No. 6009.

On March 16, 1983, petitioner sent a letter to then Justice Minister Ricardo Puno containing the following statements concerning Prosecutor Delfin:

"He (referring to Dr. Abay) even managed to mention the name of Fiscal Pedro D. Delfin, the 4th Asst. City Fiscal of Bacolod City, as one of their comrades, once the dreaded and fearful Manong Ganong of Bacolod City who killed the late radio commentator Mr. Celso Tan. I regret to reveal this because it might even mean endangering my own life but I thought this for quite sometime already and I'm no longer afraid to tell the truth." [2] cralaw

On May 3, 1984, while preparing for trial in Criminal Case No. 6009, Prosecutor Delfin reviewed the records and found a copy of petitioner's letter to then Minister Puno. Outraged by its derogatory reference to his character, Prosecutor Delfin filed with the Office of Bacolod City Prosecutor a complaint for libel against petitioner. Eventually, the City Prosecutor filed with the same Regional Trial Court an Information for libel, docketed therein as Criminal Case No. 3651.

After the case was heard on the merits, the trial court, on November 15, 1990, rendered its Decision, finding petitioner guilty as charged and imposing upon him the corresponding penalty, thus:

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1.������ Sentencing the accused REY SALILI to suffer an indeterminate penalty of 3 months 10 days of arresto mayor as minimum to 1 year, 8 months, and 30 days of prision correctional as maximum; and

2.������ To pay the offended party, Fiscal Pedro Delfin, the sum of THIRTY THOUSAND PESOS (P30,000.00) as moral damages plus TWENTY THOUSAND PESOS (P20,000.00) as exemplary damages.

SO ORDERED." [3] cralaw

Petitioner interposed an appeal to the Court of Appeals. However, he failed to file his brief on time for lack of the transcript of stenographic notes taken during the hearing on January 4, 1989 when complaining witness, Dr. Antonio Tan, testified. Hence, the Appellate Court remanded the records to the trial court for the retaking of the testimony of Dr. Tan. However, he failed to appear during the hearing as he could no longer be located.

On August 18, 1998, the Court of Appeals resolved to dispense with the retaking of the testimony of Dr. Tan and ordered petitioner to file his brief.

On February 19, 1999, petitioner submitted a Manifestation that he could not prepare the required appellant's brief without the said transcript of stenographic notes.

On May 13, 1999, the Court of Appeals issued a Resolution giving petitioner an inextendible period of thirty (30) days from notice within which to file his brief, with a warning that should he fail to do so, the appeal will be dismissed.

Petitioner failed to file his brief. Thus, on February 29, 2000, the Court of Appeal issued a Resolution dismissing his appeal.

Petitioner then filed a motion for reconsideration but was denied by the Appellate Court in its Resolution dated February 29, 2000.

Hence, the instant petition.

The only issue before us is whether the Court of Appeals erred in dismissing petitioner's appeal for his failure to file his brief.

Petitioner contends that he did not actually receive a copy of the Resolution dated May 13, 1999 of the Court of Appeals directing him to file his brief within a non-extendible period of thirty (30) days from notice. In fact, the return card shows that he had "moved out" and that his house was closed. Therefore, the period to file his brief never lapsed.

We recall that it was petitioner himself who filed with the Court of Appeals a Manifestation dated January 29, 1999 that he could not file his brief without the transcript of stenographic notes taken when Dr. Antonio Tan testified. The Resolution dated May 13, 1999 directing him to submit the appellant's brief within 30 days was then sent to the address indicated by petitioner himself in his Manifestation. It appears, however, that he changed his address without informing the Court of Appeals. Neither did he furnish the said court with his forwarding address.

Section 10, Rule 13 of the 1997 Rules of Civil Procedure, as amended provides:

"SEC. 10. Completeness of service. - Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, which is earlier."

In Vill Transport Services, Inc. vs. Court of Appeals, [4] we held that notice served upon a counsel who did not leave a forwarding address, after he had moved from his address of record, is a valid service. We see no reason why this rule should not apply to this case. To hold otherwise would lead to a dangerous precedent. For then, no process can be served upon a litigant if he or his lawyer just simply disappeared without leaving a forwarding address. The failure to leave a forwarding address is not an excusable neglect. Rather, it is such kind of neglect or inaction that gave life to the provision that service by registered mail is complete and effective, if the addressee fails to claim his mail from the post office within five days from the date of the first notice of the postmaster, at the expiration of such time. [5] cralaw

Section 8, Rule 124 of the 1985 Rules, of Criminal Procedure, then in force, which later on was reproduced in Section 8, Rule 124 of the 2001 Rules of Criminal Procedure, provides:

"SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. -The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by counsel de oficio."

In Salvador vs. Reyes, [6] cralaw we upheld the dismissal of an appeal after the appellant failed to file his brief despite having been granted several extensions to do so. In People vs. Baradi, [7] cralaw this Court affirmed the motu proprio dismissal of an appeal by the Court of Appeals for appellant's failure to timely file his brief. In Bello and Ferrer vs. Fernando, [8] cralaw we dismissed the appeal for appellant's failure to file his brief within the time prescribed. For his lethargy and neglect, he must suffer the consequences. [9] cralaw

We thus hold that the Court of Appeals did not err in dismissing petitioner's appeal for his failure to file his brief.

WHEREFORE, the petition is DENIED. The assailed Resolutions of the Court of Appeals dated February 29, 2000 and May 25, 2000 in CA-G.R. CR No. 13224 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court


Endnotes:

[1] cralaw Penned by Associate Justice Maria Alicia Austria-Martinez (now a member of this Court) and concurred in by Associate Justices Oswaldo D. Agcaoili and Wenceslao I. Agnir, Jr., both retired.

[2] cralaw Records at 84.

[3] cralaw Id. at 106.

[4] cralaw G.R. No. 76232, January 18, 1991, 193 SCRA 25.

[5] cralaw em>Martinez vs. Martinez, 90 Phil. 697 (1952), citing Pielago vs. Generoso, 73 Phil. 654 (1942).

[6] cralaw 85 Phil. 12 (1949).

[7] cralaw 82 Phil. 297 (1948).

[8] cralaw 114 Phil. 101 (1962), citing Aguilar and Casapao vs. Navarro, 55 Phil. 898 (1931); Santiago vs. Valenzuela, 78 Phil. 397 (1947).

[9] cralaw Rodriguez vs. Director of Prisons, G.R. No. 35386, September 28, 1972, 47 SCRA 153.


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