THIRD DIVISION

G.R. Nos. 191370-71, August 10, 2015

RODOLFO BASILONIA, LEODEGARIO CATALAN AND JOHN

DECISION

PERALTA, J.:

The lone issue for resolution in this petition for certiorari under Rule 65 of the 1997 Revised Rules of
Civil Procedure (Rules) with prayer for the issuance of preliminary injunction and/or temporary
restraining order is the applicability of Section 6, Rule 39 of the Rules in criminal cases. Specifically,
does a trial court have jurisdiction to grant a motion for execution which was filed almost twenty (20)
years after the date of entry of judgment? In his Orders dated December 3, 20091 and January 4,
2010,2 respondent Judge Delano F. Vi11aruz of the Regional Trial Court (RTC), Roxas City, Branch 16,
held in the affirmative.3 We sustain in part.
The Facts

On June 19, 1987, a Decision4 was promulgated against petitioners in Criminal Case Nos. 1773, 1774 and
1775, the dispositive portion of which states:LawlibraryofCRAlaw
WHEREFORE, and in view of the foregoing considerations, this court finds the [accused] Rodolfo
Basilonia, Leodegario Catalan, and John "Jojo" Basilonia, GUILTY BEYOND REASONABLE DOUBT,
as principals in Criminal Case No. 1773 for the murder of Atty. Isagani Roblete on September 15, 1983 in
Roxas City, Philippines, defined under Article 248 of the Revised Penal Code of the Philippines, without
any aggravating or mitigating circumstance, and sentences the said [accused] to suffer an indeterminate
sentence of 12 years, 1 month and 1 day of reclusion temporal as minimum, to 20 years, and 1 day of
reclusion temporal as maximum, and the accessory penalties thereto; to pay and [indemnify], jointly and
severally, the heirs of the deceased Atty. Isagani Roblete the sum of 1!32,100.00 representing funeral
expenses, tomb, burial, and expenses for wake; the sum of 1!30,000.00 as indemnity for the death of Atty.
Isagani Roblete; the amount of lost income cannot be determined as the net income of the deceased
cannot be ascertained; and to pay the costs of suit. [Accused] Vicente Catalan and Jory Catalan are
ACQUITTED for lack of evidence.

In Criminal Case No. 1775 for Frustrated Murder, this court finds the accused John "Jojo" Basilonia
GUlLTY BEYOND REASONABLE DOUBT of the crime of Frustrated Homicide, as principal,
committed against the person of Rene Gonzales on September 15, 1983, defined under Article 249, in
relation to Articles 6 and 50 of the Revised Penal Code and sentences the said accused to suffer an
indeterminate sentence of 2 years, 4 months and 1 day of prision [correccional] as minimum, to 6 years,
and 1 day of prision mayor as maximum; and to pay the costs. [Accused] Rodolfo Basilonia, Leodegario
Catalan, Vicente Catalan and Jory Catalan are ACQUITTED for lack of evidence.

In Criminal Case No. 1774 for Illegal Possession of Firearm, all [accused] are ACQUITTED for
insufficiency of evidence.

SO ORDERED.5

Petitioners filed a Notice of Appeal on July 30, 1987, which the trial court granted on August 3,
1987.6redarclaw

On January 23, 1989, the Court of Appeals (CA) dismissed the appeal for failure of petitioners to file their
brief despite extensions of time given.7redarclaw

The Resolution was entered in the Book of Entries of Judgment on September 18, 1989.8 Thereafter, the
entire case records were remanded to the trial court on October 4, 1989.9redarclaw

Almost two decades passed from the entry of judgment, on May 11, 2009, private respondent Dixon C.
Roblete, claiming to be the son of the deceased victim, Atty. Roblete, filed a Motion for Execution of
Judgment.10redarclaw

Page 1 of 6
He alleged, among others, that despite his request to the City Prosecutor to file a motion for execution, the
judgment has not been enforced because said prosecutor has not acted upon his request.

Pursuant to the trial court's directive, the Assistant City Prosecutor filed on May 22, 2009 an Omnibus
Motion for Execution of Judgment and Issuance of Warrant of Arrest.11redarclaw

On July 24, 2009, petitioners filed before the CA a Petition for Relief of Judgment praying to set aside the
June 19, 1987 trial court Decision and the January 23, 1989 CA Resolution.12 Further, on September 1,
2009, they filed before the trial court a Manifestation and Supplemental Opposition to private respondent
Roblete's motion.13redarclaw

The trial court granted the motion for execution on December 3, 2009 and ordered the bondsmen to
surrender petitioners within ten (10) days from notice of the Order. The motion for reconsideration14 filed
by petitioners was denied on January 4, 2010.

Due to petitioners' failure to appear in court after the expiration of the period granted to their bondsmen,
the bail for their provisional liberty was ordered forfeited on January 25, 2010.15 On even date, the sheriff
issued the writ of execution.16redarclaw
The Court's Ruling

The determination of whether respondent trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in granting a motion for execution which was filed almost twenty (20) years
after a judgment in a criminal case became final and executory necessarily calls for the resolution of the
twin issues of whether the penalty of imprisonment already prescribed and the civil liability arising from
the crime already extinguished. In both issues, petitioners vehemently assert that respondent trial court
has no more jurisdiction to order the execution of judgment on the basis of Section 6, Rule 39 of the
Rules.

We consider the issues separately.

Prescription of Penalty

With respect to the penalty of imprisonment, Act No. 3815, or the Revised Penal Code (RPC)17 governs.
Articles 92 and 93 of which provide:LawlibraryofCRAlaw
ARTICLE 92. When and How Penalties Prescribe. - The penalties imposed by final sentence prescribe as
follows:LawlibraryofCRAlaw
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which
prescribes in five years;
4. Light penalties, in one year.

ARTICLE 93. Computation of the Prescription of Penalties.- The period of prescription of penalties shall
commence to run from the date when the culprit should evade the service of his sentence, and it shall be
interrupted if the defendant should give himself up, be captured, should go to some foreign country with
which this Government has no extradition treaty, or should commit another crime before the expiration of
the period of prescription.

As early as 1952, in Infante v. Provincial Warden of Negros Occidental,18 the Court already opined that
evasion of service of sentence is an essential element of prescription of penalties. Later, Tanega v.
Masakayan, et al.19 expounded on the rule that the culprit should escape during the term of imprisonment
in order for prescription of penalty imposed by final sentence to commence to run,
thus:LawlibraryofCRAlaw

x x x The period of prescription of penalties- so the succeeding Article 93 provides - "shall commence to
run from the date when the culprit should evade the service of his sentence."

What then is the concept of evasion of service of sentence? Article 157 of the Revised Penal Code
furnishes the ready answer. Says Article 157:LawlibraryofCRAlaw

Page 2 of 6
ART. 157. Evasion of service of sentence. - The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping
during the term of his imprisonment by reason of final judgment. However, if such evasion or escape
shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or
floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance
with other convicts or employees of the penal institution, the penalty shall be prision correccional in its
maximum period.

Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he
"is serving his sentence which consists in deprivation of liberty"; and (3) he evades service of sentence
by escaping during the term of his sentence. This must be so. For, by the express terms of the statute, a
convict evades "service of his sentence" by "escaping during the term of his imprisonment by reason of
final judgment." That escape should take place while serving sentence, is emphasized by the provisions of
the second sentence of Article 157 which provides for a higher penalty if such "evasion or escape shall
have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors,
or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with
other convicts or employees of the penal institution, * * *" Indeed, evasion of sentence is but another
expression of the term "jail breaking."
A dig into legal history confirms the views just expressed. The Penal Code of Spain of 1870 in its Article
134 - from whence Articles 92 and 93 of the present Revised Penal Code originated-
reads:LawlibraryofCRAlaw
"Las penas impuestas por sentencia firme prescriben: Las de muerte y cadena perpetua, a los veinte años.

***

Las leves, al año.

El tiempo de esta prescripcion comenzara a correr desde el dia en que se notifique personalmente al reo la
sentencia firme, o desde el quebrantamiento de la condena, si hubiera esta comenzado a cumplirse. * * *"
Note that in the present Article 93 the words "desde el dia en que se notifique personalmente al reo la
sentencia firme", written in the old code, were deleted. The omission is significant. What remains
reproduced in Article 93 of the Revised Penal Code is solely "quebrantamiento de Ia condena". And,
"quebrantamiento" or "evasion" means escape. Reason dictates that one can escape only after he has
started service of sentence.

Even under the old law, Viada emphasizes, where the penalty consists of imprisonment, prescription shall
only begin to run when he escapes from confinement. Says Viada:LawlibraryofCRAlaw
"El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido Iugar la notificacion
personal de la sentencia firme al reo: el Codigo de 1850 no expresaba que la notificacion hubiese de ser
personal, pues en su art. 126 se consigna que el termino de Ia prescripcion se cuenta desde que se
notifique la sentencia, causa de la ejecutoria en que se imponga le pena respectiva. Luego ausente el reo,
ya no podra prescribir hoy Ia pena, pues que Ia notificacion personal no puede ser sup/ida por Ia
notificacion hecha en estrados. Dada la imprescindible necesidad del requisito de la notificacion
personal, es obvio que en las penas que consisten en privacion de libertad solo podra existir Ia
prescripcion quebrantando el reo Ia condena, pues que si no se hallare ya preso preventivamente, debera
siempre procederse a su encerrarniento en el acto de serle notificada personalmente la sentencia."
We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to
commence to run, the culprit should escape during the term of such imprisonment.20

Following Tanega, Del Castillo v. Hon. Torrecampo21 held that one who has not been committed to
prison cannot be said to have escaped therefrom. We agree with the position of the Solicitor General that
"escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure
of prisoner from the limits of his custody.

Of more recent vintage is Our pronouncements in Pangan v. Hon. Gatbalite,22 which

Applying existing jurisprudence in this case, the Court, therefore, rules against petitioners. For the longest
time, they were never brought to prison or placed in confinement despite being sentenced to

Page 3 of 6
imprisonment by final judgment. Prescription of penalty of imprisonment does not run in their favor.
Needless to state, respondent trial court did not commit grave abuse of discretion in assuming jurisdiction
over the motion for execution and in eventually granting the same.

Extinction of Civil Liability

The treatment of petitioners' civil liability arising from the offense committed is different.

Elementary is the rule that every person criminally liable for a felony is also civilly liable.23 We said in
one case:LawlibraryofCRAlaw

It bears repeating that "an offense as a general rule causes two (2) classes of injuries - the first is the social
injury produced by the criminal act which is sought to be repaired thru the imposition of the
corresponding penalty and the second is the personal injury caused to the victim of the crime which injury
is sought to be compensated thru indemnity, which is civil in nature." (Ramos v. Gonong, 72 SCRA 559).
As early as 1913, this Court in US. v. Heery (25 Phil. 600) made it clear that the civil liability of the
accused is not part of the penalty for the crime committed. It is personal to the victim. x x x.

Under Article 112 of the RPC, civil liability established in Articles 100,25 101,26 102,27 and 10328 of the
Code shall be extinguished in the same manner as other obligations, in accordance with the provisions of
the Civil Law. Since the Civil Code is the governing law, the provisions of the Revised Rules of Civil
Procedure, particularly Section 6, Rule 39 thereof, is applicable. It states:LawlibraryofCRAlaw

Section 6. Execution by motion or by independent action. - A final and executory judgment or order may
be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a judgment may be enforced by action. The revived
judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations. (6a)
Section 6, Rule 39 of the Rules must be read in conjunction with

Articles 1144 (3) and 1152 of the Civil Code, which provide:LawlibraryofCRAlaw
Art. 1144. The following actions must be brought within ten years from the time the right of action
accrues:LawlibraryofCRAlaw

xxxx

(3) Upon a judgment

Art. 1152. The period for prescription of actions to demand the fulfillment of obligations declared by a
judgment commences from the time the judgment became final.

Based on the foregoing, there are two (2) modes of enforcing a final and executory judgment or order:
through motion or by independent action.

These two modes of execution are available depending on the timing when the judgment creditor invoked
its right to enforce the court's judgment. Execution by motion is only available if the enforcement of
the judgment was sought within five (5) years from the date of its entry. On the other hand, execution
by independent action is mandatory if the five-year prescriptive period for execution by motion had
already elapsed. However, for execution by independent action to prosper - the Rules impose another
limitation - the action must be filed before it is barred by the statute of limitations which, under the Civil
Code, is ten (10) years from the finality of the judgment.29

An action for revival of judgment is not intended to reopen any issue affecting the merits of the case or
the propriety or correctness of the first judgment.30 The purpose is not to re-examine and re-try issues
already decided but to revive the judgment; its cause of action is the judgment itself and not the merits of
the original action.31 However, being a mere right of action, the judgment sought to be revived is subject
to defenses and counterclaims like matters of jurisdiction and those arising after the finality of the first
judgment or which may have arisen subsequent to the date it became effective such as prescription,
payment, or counterclaims arising out of transactions not connected with the former
controversy.32redarclaw

Once a judgment becomes final, the prevailing party is entitled as a matter of right to a writ of execution

Page 4 of 6
the issuance of which is the trial court's ministerial duty, compellable by mandamus.33 Yet, a writ issued
after the expiration of the period is null and void.34 The limitation that a judgment be enforced by
execution within the stated period, otherwise it loses efficacy, goes to the very jurisdiction of the court.
Failure to object to a writ issued after such period does not validate it, for the reason that jurisdiction of
courts is solely conferred by law and not by express or implied will of the parties.35redarclaw

Nonetheless, jurisprudence is replete with a number of exceptions wherein the Court, on meritorious
grounds, allowed execution of judgment despite non-observance of the time bar. In Lancita, et al. v.
Magbanua, et al.36 it was held:LawlibraryofCRAlaw

ChanRoblesVirtualawlibrary
In computing the time limited for suing out an execution, although there is authority to the contrary, the
general rule is that there should not be included the time when execution is stayed, either by agreement of
the parties for a definite time, by injunction, by the taking of an appeal or writ of error so as to operate as
a supersedeas, by the death of a party, or otherwise. Any interruption or delay occasioned by the debtor
will extend the time within which the writ may be issued without scire facias. x x x.37

Thus, the demands of justice and fairness were contemplated in the following instances: dilatory tactics
and legal maneuverings of the judgment obligor which redounded to its benefit;38 agreement of the parties
to defer or suspend the enforcement of the judgment;39 strict application of the rules would result in
injustice to the prevailing party to whom no fault could be attributed but relaxation thereof would cause
no prejudice to the judgment obligor who did not question the judgment sought to be executed; 40 and the
satisfaction of the judgment was already beyond the control of the prevailing party as he did what he was
supposed to do.41 Essentially, We allowed execution even after the prescribed period elapsed when the
delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or
advantage.42redarclaw

In the instant case, it is obvious that the heirs of Atty. Roblete did not file a motion for execution within
the five-year period or an action to revive the judgment within the ten-year period. Worse, other than the
bare allegation that the judgment has not been enforced because the public prosecutor has not acted on the
request to file a motion for execution, no persuasive and compelling reason was presented to warrant the
exercise of Our equity jurisdiction. Unfortunately for private respondent Roblete, the instant case does not
fall within the exceptions afore-stated. It cannot be claimed that the delay in execution was entirely
beyond their control or that petitioners have any hand in causing the same.43 As regards the civil aspect of
a criminal case is concerned, it is apt to point that —

ChanRoblesVirtualawlibrary
Litigants represented by counsel should not expect that all they need to do is sit back and relax, and await
the outcome of their case. They should give the necessary assistance to their counsel, for at stake is their
interest in the case. While lawyers are expected to exercise a reasonable degree of diligence and
competence in handling cases for their clients, the realities of law practice as well as certain fortuitous
events sometimes make it almost physically impossible for lawyers to be immediately updated on a
particular client's case.44

Aside from the civil indemnity arising from the crime, costs and incidental expenses of the suit are part of
the judgment and it is incumbent upon the prevailing party in whose favor they are awarded to submit
forthwith the itemized bill to the clerk of court.45 Manifestly, the heirs of Atty. Roblete failed to do so.
Their indifference, if not negligence, is indicative of lack of interest in executing the decision rendered in
their favor. To remind, the purpose of the law in prescribing time limitations for executing judgments or
orders is to prevent obligors from sleeping on their rights.46 Indeed, inaction may be construed as a
waiver.47redarclaw

To close, the Court cannot help but impress that this case could have been averted had the lower court
been a competent dispenser of justice. It is opportune to remind judges that once a judgment of conviction
becomes final and executory, the trial court has the ministerial duty to immediately execute the penalty of
imprisonment and/or pecuniary penalty (fine). A motion to execute judgment of conviction is not
necessary. With respect to the penalty of imprisonment, the trial court should cancel the bail bond and
issue a warrant of arrest, if the accused is not yet under detention. If the convicted accused is already
under detention by virtue of the warrant of arrest issued, the trial court should immediately issue the
corresponding mittimus or commitment order for the immediate transfer of the accused to the National
Penitentiary to serve his sentence, if the penalty imposed requires the service of sentence in the National
Penitentiary. The commitment order should state that an appeal had been filed, but the same had been

Page 5 of 6
withdrawn/dismissed/decided with finality.

If aside from the penalty of imprisonment the penalty of fine is likewise imposed, the trial court should
issue at once an order requiring the payment of fine within a reasonable period of time and, in case of
nonpayment and subsidiary imprisonment is imposed, he should likewise serve the subsidiary
imprisonment. If, however, the penalty is only fine and the judgment has become final and executory, an
order should be issued by the trial court at once for the payment of the fine. And in case of non-payment,
the bail bond previously issued for his provisional liberty should be cancelled and a warrant of arrest
should be issued to serve the subsidiary imprisonment, if there is any.

In cases where the accused is a detention prisoner, i.e., those convicted of capital offenses or convicted of
non-capital offenses where bail is denied, or refused to post bail, a mittimus or commitment order should
be immediately issued after the promulgation of judgment by the trial court as long as the penalty
imposed requires the service of sentence in the National Penitentiary. The filing of a motion for
reconsideration, motion for new trial, or notice of appeal should not stop the lower court from performing
its ministerial duty in issuing the commitment order, unless a special order has been issued by the Court
in specific cases - to the effect that the convicted accused shall remain under detention in the provincial
jail or city jail while the motion is being heard or resolved.

In so far as the civil liability arising from the offense is concerned, a motion for execution should be filed
in accordance with Section 6, Rule 39 of the Rules and existing jurisprudence.

WHEREFORE, the foregoing considered, the instant petition for certiorari is PARTIALLY
GRANTED. The Orders dated December 3, 2009 and January 25, 2010 of Presiding Judge Delano F.
Villaruz, Regional Trial Court, Roxas City, Branch 16, are AFFIRMED IN PART only insofar as to the
execution of the penalty of imprisonment is concerned. Let the records of this case be REMANDED to
the trial court for the immediate issuance of mittimus, pursuant to OCA Circular No. 40-2013, in relation
to OCA Circular No. 4-92-A.

The Office of the Court Administrator is hereby DIRECTED to conduct an investigation on the possible
culpability of those responsible for the unreasonable delay in the execution of the judgment of conviction.

SO ORDERED.cralawlawlibrary

Page 6 of 6