Republic of the Philippines COURTOF APPEALS Cebu City NINETEENTH DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versusJuan Dela Cruz, Accused-Appellants, x--------------------------------------------------------------------/ CA GR. NO. 01221

MEMORANDUM OF AUTHORITIES (FOR THE ACCUSED-APPELLANTS)

ACCUSED-APPELLANTS, by counsel, unto this Honorable Appellate Court, most respectfully submit their memorandum of authorities as follows: PREFATORY STATEMENTS AND MATERIAL DATES The above-entitled case is appealed through a Petition for Review under Rule 42 of the Rules of Court. On May 21, 2010, the Honorable Appellate Court issued a Resolution directing the parties to their respective memoranda of authorities within fifteen (15) days from receipt of said resolution. Accused-appellants received their copy through their counsel on June 7, 2010.
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Hence, they still have until June 22, 2010 within which to submit this memorandum. ISSUE WHETHER OR NOT THE NOTICE OF APPEAL WAS FILED WITHIN THE ALLOWABLE REGLEMENTARY PERIOD, OR ASSUMING THE NOTICE OF APPEAL WAS INDEED FILED OUT OF TIME, WHETHER OR NOT THE SAME WOULD BIND THE ACCUSED-APPELLANTS ARGUMENTS/DISCUSSIONS Section 2, Rule 40 provides that an appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. x x x x x. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. x x x x x. In the case of PADUA, ET AL., vs. CA1, the Supreme Court held In the case of Neypes v. Court of Appeals, the Court had occasion to settle the uncertainly as regards the reckoning point of the 15-day period to appeal. We held that . . . [A] party litigant may file his notice of appeal within 15 days from receipt of the Regional Trial Courts decision or file it within 15 days from
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GR No. 152150, December 10, 2008

receipt of the order (the final order) denying his motion for new trial or motion for reconsideration. . . In order to standardize the appeal periods in the Rules and to afford litigants a fair opportunity to appeal their cases, the Court deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC. Said period is to be counted from receipt of the order dismissing the motion for new trial or motion for reconsideration. The question of whether or not the foregoing rule is applicable to the case where it was originally filed before the Municipal Trial Court. The Supreme Court answered this question in the case of SUMAWAY, ET AL., vs. URBAN BANK, INC.2, which it held Henceforth, this fresh period rule shall apply to Rule 40 governing appeals from the Municipal Trial Trial Courts 42 to on the the Regional Court; Rule

petitioners for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for
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GR No. 142534, June 27, 2006

new

trial,

motion

for

reconsideration

(whether full or partial) or any final order or resolution. In this appealed case, the judgment of conviction was promulgated on June 26, 2007. Applying the rule that the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included, accused-appellants still has up to July 11, 2007. But since accused-appellants timely filed on June 29, 2007 their Motion for Reconsideration to the judgment of conviction, the running of the 15-day period was interrupted. denied. On November 22, 2007, the Motion for Reconsideration to the judgment of conviction was The order of denial was received by then counsel of record Atty. Bernardito Florido on December 6, 2007. On the part of the accused-appellants, they received their copy on December 14, 2007. If we will based it on the date when Atty. Florido received his copy, accused-appellants still have up to December 21, 2007 within which to file a Notice of Appeal or apply for probation. Now, if we will based on the date when the accused-appellants received their copy of the order, then they still have up to December 29, 2007. This computation is again based on the fresh period rule. But since on December 12, 2007, accused-appellants through their counsel Atty. Ireneo L. Gako, Jr. filed an urgent motion to recall order denying their motion for reconsideration, the 15-day period was once again interrupted. The urgent motion to recall was denied on February 6, 2008 which the accused-appellants received the order of the same on March 4, 2008. Again, applying the fresh period rule, accused-appellants still has up to March 19, 2008 within which to file a notice of appeal or apply for probation. Exactly on March 14, 2008, accused-appellant filed Notice of Appeal.
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Clearly, the MTCC as well as the RTC-27 committed mistakes when both courts ruled that accused-appellants right to appeal their case or to apply for probation has already lapsed. As can be seen on the dates mentioned above, accused-appellants notice of appeal was filed five (5) days ahead from the deadline. Assuming that the Notice of Appeal was indeed filed out of time, the same would not bind the accused-appellants since there was gross or palpable negligence committed by their previous lawyer. Nothing is more settled than the rule that the mistake of a counsel binds the client. It is only in case of gross or palpable negligence of counsel when the courts must step in and accord relief to a client who suffered thereby3. Accused-Appellants former counsel, Atty. Ireneo Gako is a newly retired Regional Trial Court Judge in Cebu City. In fact, before he became a judge, he was the former City Prosecutor of Lapulapu City. Not only that, he was once also a professor of law in one of the leading universities in Cebu. With this background, he is expected to be more familiar of the law, substantially and procedurally. The 15-day prescribed period to appeal is a basic procedure. Even law students know this rule. Hence, the failure of Atty. Gako to observe this very basic rule is a clear example of gross or palpable negligence committed by a lawyer. Thus, the Honorable Appellate Court must step in and accord what is available relief to the accused-appellants.

Legarda vs. CA, GR No. 94457, March 18, 1991

As member of the Philippine Bar he owes complete fidelity to the cause of his client. He should give adequate attention, care and time to his cases. This is the reason why a practicing lawyer should accept only so many cases he can afford to handle. And once he agrees to handle a case, he should undertake the task with dedication and care. If he should do any less, then he is not true to his oath as a lawyer4. In Escudero vs. Judge Dulay5, the Supreme Court, in holding that the counsel's blunder in procedure is an exception to the rule that the client is bound by the mistakes of counsel, made the following disquisition: Petitioners contend, through their new

counsel, that the judgments rendered against them by the respondent court are null and void, because they were therein deprived of their day in court and divested of their property without due process of law, through the gross ignorance, mistake and negligence of their previous counsel. They acknowledge that, while as a rule, clients are bound by the mistake of their counsel, the rule should not be applied automatically to their case, as their trial counsel's blunder in procedure and gross ignorance of existing jurisprudence changed their cause of action and violated their substantial rights. We are impressed with petitioner's

contentions.

4 5

ibid 158 SCRA 69 (1988)

Ordinarily, a special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for failure to file a timely petition for review on certiorari (appeal) under Rule 45 of the Rules. Where, however, the application of the rule will result in a manifest failure or miscarriage of justice, the rule may be relaxed. xxx xxx xxx While this Court is cognizant of the rule that, generally, a client will suffer the consequences of the negligence, mistake or lack of competence of his counsel, in the interest of justice and equity, exceptions may be made to such rule, in accordance with the facts and circumstances of each case. Adherence to the general rule would, in the instant case, result in the outright deprivation of their property through a technicality.

In the case of Apex Mining Inc. vs. CA6, the Supreme Court said, thus A client may reasonably expect that his counsel will make good his representations and has the right to expect that his lawyer will protect his interests during the trial of his case. For the general employment of an attorney to prosecute or defend a case or proceeding ordinarily vests in a plaintiffs attorney the implied authority to take
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GR No. 133750, November 29, 1999

all steps or do all acts necessary or incidental to the regular and orderly prosecution and management of the suit, and in a defendants attorney, the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant." In this present case, accused-appellants former counsel, Atty. Gako, failed to make good of his representations. Accusedappellants expected him that he will do what was good for them at that time. In the case of Sibal vs. People7, the Supreme Court held, thus xxxxx In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law. The importance and real purpose of the remedy of appeal has been emphasized in Castro v. Court of Appeals27 where we ruled that an appeal is an essential part of our judicial system and trial courts are advised to proceed with caution so as not to deprive a party of the right to appeal and instructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities. While this right is statutory, once it is granted by law, however, its
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GR No. 161070, April 14, 2008

suppression would be a violation of due process, a right guaranteed by the Constitution. Thus, the importance of finding out whether petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at all attributed to petitioner. xxxxx In the recent case of PCI Leasing and Finance, Inc. vs. Milan, et al.8, the Supreme Court citing the case of Sibal vs. People held, thus xxxxx However, this court has relaxed this rule in order to serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favoured by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby. Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. that
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Their strict and rigid rather than promote

application, which would result in technicalities tend to frustrate

GR No. 151215, April 5, 2010

substantial justice, must always be eschewed. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final. xxxxx In the case of Sarraga, et al., vs. Banco Filipino Savings and Morgage Bank9, the Supreme Court held, thus xxxxx The fundamental purpose of procedural rules is to afford each litigant every opportunity to present evidence in their behalf in order that substantial justice is achieved. Court litigations are primarily for the search of truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth. The dispensation technicalities. Hence, in cases where a party was denied this right, we have relaxed the stringent application of procedural rules in order to allow a party the chance to be heard. This policy applies with equal force in case of appeals. It has been
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of

justice

and

vindication

of

legitimate grievances should not be barred by

GR No. 143783, December 9, 2002

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consistently held that the dismissal of appeal on purely technical grounds is frowned upon. "x x x, dismissal of appeals purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very aims. Verily, this Court, in the exercise of its equity jurisdiction, may even stay the dismissal of appeals grounded merely on technicalities, especially in this case where petitioners appeal appears prima facie worthy of the CAs full consideration on the merits." xxxxx In the case of Aguilar vs. Court of Appeals10, the Supreme Court held, thus xxxxx x x x Losing liberty by default of an

insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer. The established jurisprudence holds: xxxx The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding upon the client, as any other procedural
10

320 Phil 456 (1995)

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rule, is to serve as an instrument to advance the ends of justice. When in the circumstances of each case the rule desert its proper office as an aid to justice and becomes its great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a manifest miscarriage of justice. xxxx The court has the power to except a

particular case from the operation of the rule whenever the purposes of justice require it. xxxx If the incompetence, ignorance or

inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. In a criminal proceeding, presented where because certain of evidence counsel's was error not or

incompetence, the defendant in order to secure a new trial must satisfy the court that he has a good defense and that the acquittal would in all probability have followed the introduction of the omitted evidence. What should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or
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defense rather than for him to lose life, liberty, honor or property on mere technicalities. xxxxx The foregoing jurisprudence falls squarely in this instant petition of the accused-appellants. Clearly, accused-appellants Hence, the former counsel was guilty of gross negligence. any way bind the accused-appellants.

palpable mistake committed by said former counsel should not in

PRAYER WHEREFORE, it is respectfully prayed of this Honorable Appellate Court to reverse the order of the lower court denying the Notice of Appeal of the accused-appellants by allowing the accused-appellants to appeal their case to the Regional Trial Court, or in the alternative, to allow the accused-appellants to apply for probation. Other just and equitable remedies are likewise prayed for. June 17, 2010, Mandaue City, (for Cebu City), Philippines.

Flora Mae P. Angtud Collaborating Counsel for the Accused-Appellants Keppel Building, Ayala Business Park Cebu City Roll No. 12345
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IBP No. 23456, Cebu Chapter, April 15, 2010 PTR No. 3456789, Mandaue City, January 4, 2010 MCLE Compliance No. II 0005972 MCLE Compliance No. III 0000129

Copy Furnished: The Honorable City Prosecutor (personally served) Lapulapu City Prosecutors Office Lapulapu City Received By _________________ on _____________ The Clerk of Court (personally served) RTC Branch 27 Lapulapu City Received By __________________ on ______________ The Solicitor General Office of the Solicitor General #134 Amorsolo Street Legaspi Village, Makati City 1229 Registry Receipt No. _____________, dated ____________ Atty. Gongie Counsel for Private Respondent RCBC Building Makati City., Makati Registry Receipt No. ____________, dated _____________

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EXPLANATION Copy of this Memorandum is personally served to the Lapulapu City Prosecutors Office and RTC-27, Lapulapu City. Likewise, a copy of the same was sent through registered mail to the Solicitor General and due to distance and impracticability to effect personal service.

Flora Mae P. Angtud

Republic of the Philippines) City of Mandaue ...........)SS. AFFIDAVIT OF SERVICE/MAILING I, Juan Tamad of legal age, Filipino, single, and a resident of Mandaue City, Cebu, Philippines, after being sworn in accordance with law, do hereby depose and state: THAT
1. I am at present the clerk/messenger of the ANGTUDS LAW OFFICE

located at Keppel Building, Ayala Business Park, Cebu City. On June 15, 2010, I served through personal service and/or registered mail copies of this Memorandum to: The Honorable City Prosecutor (personally served) Lapulapu City Prosecutors Office, Lapulapu City The Clerk of Court (personally served) RTC Branch 27 Mandaue City, Lapulapu City The Solicitor General Office of the Solicitor General #134 Amorsolo Street Legaspi Village, Makati City, 1229 Atty. Gongie Counsel for Private Respondent RCBC Building, Makati City Makati City

2. Proof of service and registry receipt of the foregoing mailing can be

clearly seen on page 14 of the pleading.

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IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of June 2010, at Mandaue City, Philippines. Juan Tamad Affiant SSS ID No. 0623473095 SUBSCRIBED AND SWORN to before me this ____ day of June 2010, at Mandaue City, Philippines. Affiant exhibited to his SSS ID No. 0623473095. Doc. No. __ Page No. __ Book No. __ Series of 2010

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