CASE DIGEST:

FACTS: (a case revived when with express consent of the accused would not constitute double jeopardy)
On November 8, 2011, two informations was filed against the petitioner for violation of Secs. 5 and 11 of
RA 9165 (also known as Comprehensive Dangerous Drugs Act).
Court hearings were set, however, the prosecution’s principal witness (one of the arresting officers)
failed to attend the scheduled hearings. Thus, respondent judge issued an order provisionally dismissing the
cases with the express consent of the accused-petitioner.
On June 5, 2013, PO2 Villas (prosecution’s principal witness) filed a motion to re-open the case against
the petitioner which was granted by the respondent judge on the ground that his failure to appear during the
scheduled hearings was due to the untimely death of his father-in-law and that PO3 Sabulaan (one of the
arresting officers) could have not received the subpoena as he had been transferred to another station.
ISSUE:
Whether the revival of the case, provisionally dismissed with the consent of the accused-petitioner,
would constitute double jeopardy.
HELD:
No, when a criminal case is provisionally dismissed with the express consent of the accused, the case
may be revived by the State; hence, its revival would not constitute double jeopardy.
As a general rule, the following requisites must be present for double jeopardy to attach:
a) a valid indictment;
b) before a court of competent jurisdiction;
c) the arraignment of the accused;
d) a valid plea entered by him; and
e) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without
his express consent.
In the instant case, while the first four requisites are present, the last requisite is lacking, considering that
the dismissal was merely provisional and it was done with the express consent of the accused-petitioner.
Petitioner is not in danger of being twice put in jeopardy with the reopening of the case against her as it is clear
that the case was only provisionally dismissed by the trial court.
The provisional dismissal of the case does not operate as an acquittal since its dismissal was made with
the express consent of the accused, thus, there is no double jeopardy.
 THIRD DIVISION

G.R. Nos. 211933 & 211960, April 15, 2015

ROBERTA S. SALDARIEGA, Petitioner, v. HON. ELVIRA D.C. PANGANIBAN, PRESIDING JUDGE,

DECISION

PERALTA, J.:

Before us is a special civil action for certiorari1 under Rule 65 of the Rules of Court, dated April 21,
2014 filed by Roberta S. Saldariega (petitioner), through counsel, assailing the Order dated June 14,
2013 issued by respondent Presiding Judge Elvira D.C. Panganiban, which granted the motion to
reopen Criminal Case Nos. Q-1 1-173055 and Q-1 1-173056, for allegedly having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The facts of the case, as culled from the records, are as follows:

On November 8, 2011, the Office of the City Prosecutor, Quezon City filed two (2) Informations
against petitioner Roberta S. Saldariega for violation of Sections 5 and 11, Article 2, Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, docketed as Criminal
Case Nos. Q-1 1-173055 and Q-1 1-173056, respectively.2 Said cases were raffled to Branch 227,
Regional Trial Court, Quezon City, presided by herein respondent Judge Elvira D.C. Panganiban.

Court hearings were set for the subject cases, however, the prosecution's principal witness PO2
Nelson Villas (PO2 Villas), one of the arresting officers, failed to attend said scheduled hearings,
specifically on October 22, 2012 and October 25, 2012.3 Thus, during the May 16, 2013 hearing,
respondent judge issued an Order provisionally dismissing the cases with the express consent of the
accused-petitioner,4 the dispositive portion of which reads as follows:
chanroblesvirtuallawlibrary

xxxx

Today is supposedly set for the continuation of the direct testimony of PO2 Nelson Villas. However,
although notified, said witness failed to appear simply on the ground that there is a deceased relative,
the body of whom, he will accompany to the province.

The records show that on December 10, 2012, he testified partially on direct examination and he was
notified of the March 26, 2013 continuation of his testimony, but despite Notice in open Court, he
failed to appear. Likewise, the Court noticed that the other prosecution witness, PO3 Rionaldo
Sabulaan never appeared despite Notice received. It appears from the records that only the Forensic
Chemist testified on September 13, 2012, but the Forensic Chemist does not have any personal
knowledge of the source of the evidence she examined, and also on the facts and circumstances
affecting the arrest of the accused. Thus, the defense counsel invoked the right of the accused to
speedy trial. The Public Prosecutor did not object to the dismissal, provided the dismissal is only
provisional. Hence, let these cases be ordered PROVISIONALLY DISMISSED WITH THE EXPRESS
CONSENT OF THE ACCUSED AND HER COUNSEL.

xxxx

SO ORDERED.5 cralawlawlibrary

On June 5, 2013, PO2 Villas filed a Motion to Re-open the Case against petitioner. PO2 Villas
explained that his failure to appear during the hearings of the cases was due to the untimely death of
his father-in-law.6 He further averred that PO3 Rionaldo Sabulaan, one of the arresting officers, is no
longer assigned at the Cubao Police Station and had been transferred at the Batasan Police Station
since November 2012, thus, could not have received his subpoena which is directed at his former
place of assignment.

In the disputed Order7 dated June 14, 2013, respondent Judge granted the motion and ordered the
re-opening of the cases against petitioner and set the cases for continuation of hearing.

Petitioner moved for reconsideration. She argued that the provisional dismissal of the criminal cases
is considered an acquittal and PO2 Villas had no personality to file the motion to re-open the case. 8
In an Order9 dated February 18, 2014, respondent denied petitioner's motion for reconsideration.

On April 29, 2014, the Court resolved to require respondents to comment on the instant petition. 10

In their Comment11 dated June 11, 2014, the Office of the Solicitor General, through then Solicitor
General Francis H. Jardeleza,12 maintained that respondent judge committed no grave abuse of
discretion in issuing the assailed Orders dated June 14, 2013 and February 18, 2014. It argued that
petitioner did not expressly object to the motion to revive the criminal cases.

Thus, the instant petition raising the following issues: chanroblesvirtuallawlibrary

WHETHER OR NOT WITNESS PO2 NELSON VILLAS CAN FILE A MOTION TO REOPEN A
PROVISIONALLY DISMISSED CASE WITHOUT THE PARTICIPATION OF A PUBLIC PROSECUTOR. cralawlawlibrary

II

WHETHER OR NOT THE BRANCH CLERK OF COURT HAS THE RIGHT TO RECEIVE A MOTION TO RE-
OPEN THAT DOES NOT CONTAIN A NOTICE OF HEARING AND A SHOWING THAT THE OTHER PARTY
WAS GIVEN A COPY THEREOF. cralawlawlibrary

III

WHETHER OR NOT THE RESPONDENT JUDGE HAS THE AUTHORITY TO ACT FAVORABLY UPON SAID
MOTION. cralawlawlibrary

IV

WHETHER OR NOT THE PROVISIONAL DISMISSAL OF CRIMINAL CASES NOS. Q-1 1-173055-56 WITH
THE CONSENT OF THE ACCUSED BUT PREDICATED ON FAILURE TO PROSECUTE WHICH VIOLATES
THE RIGHT OF THE ACCUSED TO SPEEDY TRIAL IS NOT EQUIVALENT TO AN ACQUITTAL, SUCH THAT
ITS REVIVAL WOULD CONSTITUTE DOUBLE JEOPARDY. cralawlawlibrary

WHETHER OR NOT THE ABSENCE OF PROSECUTION'S PRINCIPAL WITNESS PO2 NELSON VILLAS FOR
FOUR (4) CONSECUTIVE HEARINGS HAD BEEN CONSIDERED WAIVER PURSUANT TO A.M. NO. 11-6-
10-SC.
RULING

We deny the petition.

The Court notes that the instant case suffers from procedural infirmities which this Court cannot
ignore. While this petition is to be treated as one for certiorari under Rule 65, it is still dismissible for
violation of the hierarchy of courts. Although the Supreme Court has concurrent jurisdiction with the
RTC and the CA to issue writs of certiorari, this should not be taken as granting parties the absolute
and unrestrained freedom of choice of the court to which an application will be directed. Direct resort
to this Court is allowed only if there are special, important and compelling reasons clearly and
specifically spelled out in the petition, which are not present in this case.13

Moreover, this being a petition on certiorari under Rule 65, the issues raised herein should be
confined solely to questions of jurisdiction. Thus, while in the course of the discussion, it may be
necessary to thresh out pertinent factual issues, the same is limited for the purpose of resolving the
issue on jurisdiction, that is, whether the trial court committed grave abuse of discretion resulting to
lack or in excess of jurisdiction.

When a criminal case is provisionally dismissed with the express consent of the accused, the case
may be revived by the State within the periods provided under the 2nd paragraph of Section 8, Rule
117 of the Rules of Criminal Procedure.

A case shall not be provisionally dismissed except with the express consent of the accused and with
notice to the offended party. Here, a perusal of the Order, dated May 16, 2013, stresses in no
uncertain terms that the dismissal of the case was provisional, i.e., the case could be revived at some
future time. If petitioner believed that the case against her should be dismissed with prejudice, she
should not have agreed to a provisional dismissal. She should have moved for a dismissal with
prejudice so that the court would have no alternative but to require the prosecution to present its
evidence. There was nothing in the records showing the accused's opposition to the provisional
dismissal nor was there any after the Order of provisional dismissal was issued. She cannot claim now
that the dismissal was with prejudice. Thus, if a criminal case is provisionally dismissed with the
express consent of the accused, as in this case, the case may be revived by the State within the
periods provided under the 2nd paragraph of Section 8, Rule 117 of the Rules of Criminal Procedure.
There is no violation of due process as long as the revival of a provisionally dismissed complaint was
made within the time-bar provided under the law.

Generally, the prosecutor should have been the one who filed the motion to revive because it is the
prosecutor who controls the trial. But in this particular case, the defect, if there was any, was cured
when the public prosecutor later actively participated in the denial of the accused's motion for
reconsideration when she filed her Comment/Objection thereto. In the Order denying the motion, the
trial court stated that "in her Comment/Objection, the Public Prosecutor begged to disagree primarily
on the ground that double jeopardy has not set in, because the provisional dismissal of the case was
with the express consent of the accused."14 The court even went further when it stated that "although
the Motion to Re-open the case was filed by the witness without securing the conformity of the Public
Prosecutor, in effect, the prosecutor has conformed to the re-opening of the case because she (the
prosecutor) finds that the failure of the witness to appear on two (2) hearings was due to the death of
the father in law on March 23, 2013 and the death of his aunt on May 12, 2013, as substantiated by
the respective Certificates of Death of the said relatives."15

Moreover, in the case at bar, it must be noted that the accused is charged with a public crime, hence,
it is a victim-less crime. Unlike in private crimes where the participation of the private offended party
is generally required for the recovery of civil liability, in the instant case, there is no particular private
offended party who can actually file the motion to revive. Hence, in some instances, as in this case, it
is the arresting officer, PO2 Villas, who filed the motion to revive the case out of his sense of duty as
a police officer and compelled by his sense of obligation considering that he knew his absence was the
cause why the complaint was provisionally dismissed.

We could not entirely blame PO2 Villas in filing the motion to revive since we are aware that in drug-
related cases, the arresting officers are usually required to explain by their superiors when a case is
provisionally dismissed due to their failure to appear during trial. Thus, in order to exonerate
themselves from a possible administrative and criminal liability, the arresting officers would then opt
instead to file the motion to revive on their own.

The provisional dismissal of the case does not operate as an acquittal since its dismissal was made
with the express consent of the accused, thus, there is no double jeopardy.

Further, the proscription against double jeopardy presupposes that an accused has been previously
charged with an offense, and the case against him is terminated either by his acquittal or conviction,
or dismissed in any other manner without his consent. As a general rule, the following requisites must
be present for double jeopardy to attach: (1) a valid indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal
or conviction of the accused, or the dismissal or termination of the case against him without his
express consent. However, there are two (2) exceptions to the foregoing rule, and double jeopardy
may attach even if the dismissal of the case was with the consent of the accused: first, when there is
insufficiency of evidence to support the charge against him; and second, where there has been an
unreasonable delay in the proceedings, in violation of the accused's right to speedy trial.16

In the instant case, while the first four requisites are present, the last requisite is lacking, considering
that here the dismissal was merely provisional and it was done with the express consent of the
accused-petitioner. Petitioner is not in danger of being twice put in jeopardy with the reopening of the
case against her as it is clear that the case was only provisionally dismissed by the trial court. The
requirement that the dismissal of the case must be without the consent of the accused is not present
in this case. Neither does the case fall under any of the aforementioned exceptions because, in fact,
the prosecution had failed to continue the presentation of evidence due to the absence of the
witnesses, thus, the fact of insufficiency of evidence cannot be established. Likewise, we find no
unreasonable delay in the proceedings that would be tantamount to violation of the accused's right to
speedy trial.

This Court has emphasized that "'speedy trial' is a relative term and necessarily a flexible concept." In
determining whether the accused's right to speedy trial was violated, the delay should be considered
in view of the entirety of the proceedings. The factors to balance are the following: (a) duration of the
delay; (b) reason therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused
by such delay. In the instant case, petitioner failed to show any evidence that the alleged delay in the
trial was attended with malice or that the same was made without good cause or justifiable motive on
the part of the prosecution. Mere mathematical reckoning of the time involved would not suffice as
the realities of everyday life must be regarded in judicial proceedings.17

Here, the delay in the proceedings, which ran from October 25, 2012 until the provisional dismissal of
the case on May 13, 2013, is not the kind of delay contemplated under the law as to violate the
accused's right to speedy trial. More so, when the cause of the delay is valid, as in the instant case.
Likewise, a perusal of the Order dated May 16, 2013 would show that the order was categorical in
stating that the dismissal of the complaint was provisional with the express consent of the accused
and her counsel. The court merely stated in the Order as to what transpired during the proceedings of
the case and not that the dismissal was based on the accused's right to speedy trial.

While the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy
administration of justice, we cannot, however, deprive the State of a reasonable opportunity to fairly
prosecute criminals. We reiterate that unjustified postponements which prolong the trial for an
unreasonable length of time are what offend the right of the accused to speedy trial.18

In a petition for certiorari under Rule 65, petitioner should establish that the court or tribunal acted in
a capricious, whimsical, arbitrary or despotic manner in the exercise of its jurisdiction as to be
equivalent to lack of jurisdiction.

In view of the foregoing, we, thus, find no basis for issuing the extraordinary writs of certiorari with
injunction, as there was no showing that the alleged error in judgment was tainted with grave abuse
of discretion. Nowhere in the petition did petitioner show that the issuance of the assailed orders was
patent and gross that would warrant striking it down through a petition for certiorari. No argument
was shown that the trial court exercised its judgment capriciously, whimsically, arbitrarily or
despotically by reason of passion and hostility.

It is well settled that a petition for certiorari against a court which has jurisdiction over a case will
prosper only if grave abuse of discretion is manifested. The burden is on the part of the petitioner to
prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent issuing the impugned order. Mere abuse of discretion
is not enough; it must be grave. The term grave abuse of discretion is defined as a capricious and
whimsical exercise of judgment as patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and
despotic manner because of passion or hostility. 19Certiorari will issue only to correct errors of
jurisdiction, and not errors or mistakes in the findings and conclusions of the trial court. cralawred

WHEREFORE, the petition is DENIED for lack of merit. The Orders dated June 14, 2013 and
February 18, 2014 in Criminal Cases Nos. Q-1 1-173055 and Q-1 1-173056 entitled People of the
Philippines v. Roberta Saldariega are AFFIRMED. Let the case be remanded to the lower court for
further proceedings with dispatch.

SO ORDERED. chanroblesvirtuallawlibrary

Velasco, Jr., (Chairperson), Mendoza,*Reyes, and Leonen,**JJ., concur.

Endnotes:

* 
Designated additional Member, in lieu of Associate Justice Martin S. Villarama, Jr., per Special Order
No. 1966 dated March 30, 2015.

** 
Designated Acting Member, in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated
October 20, 2014.

1
Rollo, pp. 3-20.

2
Id. at 21-24.

3
Id. at 26-27.

4
Id. at 29-30.

5
Id. at 29.

6
Id. at 31-32.

7
Id. at 33.

8
Id. at 34-39.

9
Id. at 40-42.

10
Id. at 46.

11
 Mat 64-72.
12
 Now an Associate Justice of the Supreme Court.

13
Macapagal v. People, G.R. No. 193217, February 26, 2014, 717 SCRA 425, 430-431.

14
Rollo at 40-41

15
Id.

16
Condrada v. People, 446 Phil. 635, 641-642 (2003).

17
William Co v. New Prosperity Plastic Products, G.R. No. 183994, June 30, 2014.

18
People v. Rama, 403 Phil. 155, 168 (2001).

19
Tan v. Spouses Antazo, 659 Phil. 400, 404 (2011).