1.
Petitioner, in the instant case, seeks to assail the
Sandiganbayan's Resolutions dated December 4, 2013 and February 2, 2015 wherein
said court denied her motion to reopen the malversation case against her.
Will extraordinary remedy of
certiorari under Rule 65 prosper?
No.
Said resolutions are clearly final orders that dispose the
proceedings completely. The instant petition for certiorari under Rule 65 is,
therefore, improper.
2.
When may extraordinary remedy of certiorari be availed?
If there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law. If the
Order or Resolution sought to be assailed is in the nature of a final order,
the remedy of the aggrieved party would be to file a petition for review on
certiorari under Rule 45 of the Rules of Court. Otherwise, the appropriate
remedy would be to file a petition for certiorari under Rule 65.
3.
Petitioner posits that her counsel, Atty. Hayes-Allen, never
received the August 31, 2010 Resolution of the Sandiganbayan denying her Motion
for Reconsideration. This is because notice thereof was erroneously sent to said counsel's previous office at Poblacion, La Trinidad,
Benguet, despite the fact that it was specifically indicated in the Motion for
Reconsideration that the new office is at the Public Attorney's Office of
Tayug, Pangasinan, following her counsel's appointment as public attorney.
Thus, since her counsel was not properly notified of the subject resolution,
the entry of judgment is premature.
Petitioner's counsel failed to inform the court of the change in
her office address but specifically indicated in the Motion for Reconsideration
the new office.
Petitioner expressly admitted having received the subject
resolution "sometime in September or October 2010."
Should the court take judicial cognizance of the new address?
No.
Time and again, the Court has
held that in the absence of a proper and adequate notice to the court of a
change of address, the service of the order or resolution of a court upon the
parties must be made at the last address of their counsel on record. It is the
duty of the party and his counsel to device a system for the receipt of mail
intended for them, just as it is the duty of the counsel to inform the court
officially of a change in his address. If counsel moves to another address
without informing the court of that change, such omission or neglect is
inexcusable and will not stay the finality of the decision. The court cannot be
expected to take judicial notice of the new address of a lawyer who has moved
or to ascertain on its own whether or not the counsel of record has been
changed and who the new counsel could possibly be or where he probably resides
or holds office.
4.
Using facts in No. 3, would an entry of judgement be considered
as premature applying the ruling in People v. Chavez?
No.
Easily, she could have informed
her counsel of the same. As respondent posits, it is not as if petitioner had
no knowledge of the whereabouts of her counsel considering that at the time of
the filing of her Motion for Reconsideration, said counsel was already with the
PAO. Moreover, the Court cannot permit petitioner's reliance
on the Chavez case because there, petitioner did not receive the resolution of
the Court of Appeals through no fault or negligence on his part. Here, however,
petitioner's non-receipt of the subject resolution was mainly attributable not
only to her counsel's negligence but hers, as well. Thus, the Court deems it
necessary to remind litigants, who are represented by counsel, that they should
not expect that all they need to do is sit back, relax and await the outcome of
their case. They should give the necessary assistance to their counsel for what
is at stake is their interest in the case. It is, therefore, their
responsibility to check the status of their case from time to time.
5.
What are the requirements to re-open a case?
Section 24, Rule 119 and existing
jurisprudence provide for the following requirements for the reopening a case:
(1) the reopening must be before the finality of a judgment of conviction; (2)
the order is issued by the judge on his own initiative or upon motion; (3) the
order is issued only after a hearing is conducted; ( 4) the order intends to
prevent a miscarriage of justice; and (5) the presentation of additional and/or
further evidence should be terminated within thirty days from the issuance of
the order.
6.
What are the elements of malversation of public funds?
The elements of malversation of public funds under Article 217 of the
Revised Penal Code (RPC) are: (1) that the offender is a public officer; (2)
that he had the custody or control of funds or property by reason of the duties
of his office; (3) that those funds or property were public funds or property
for which he was accountable; and (4) that he appropriated, took,
misappropriated or consented or, through abandonment or negligence, permitted
another person to take them. This article establishes a presumption that when a
public officer fails to have duly forthcoming any public funds with which he is
chargeable, upon demand by any duly authorized officer, it shall be prima facie
evidence that he has put such missing funds to personal uses.
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