THIRD DIVISION

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

ROBERTA S. SALDARIEGA, Petitioner, v. HON. ELVIRA D.C. PANGANIBAN, PRESIDING JUDGE,
BRANCH 227, REGIONAL TRIAL COURT, NATIONAL CAPITAL REGION, QUEZON CITY AND PEOPLE
OF THE PHILIPPINES, Respondent.
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:
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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

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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:

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WHETHER OR NOT WITNESS PO2 NELSON VILLAS CAN FILE A MOTION TO REOPEN A PROVISIONALLY
DISMISSED CASE WITHOUT THE PARTICIPATION OF A PUBLIC PROSECUTOR.
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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.
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III
WHETHER OR NOT THE RESPONDENT JUDGE HAS THE AUTHORITY TO ACT FAVORABLY UPON SAID
MOTION.
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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.
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V
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 accusedpetitioner. 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.
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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.

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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.
**

Rollo, pp. 3-20.

Id. at 21-24.

Id. at 26-27.

Id. at 29-30.

Id. at 29.

Id. at 31-32.

Id. at 33.

Id. at 34-39.

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).

G.R. No. L-54110 February 20, 1981

GENEROSO ESMEA and ALBERTO ALBA, petitioners,
vs.
JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES
and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu
City, respondents.

AQUINO, J.:

This case poses the issue of whether the revival of a grave coercion case, which was provisionally
dismissed (after the accused had been arraigned) because of complainant's failure to appear at the
trial, would place the accused in double jeopardy, considering their constitutional right to have a
speedy trial.
Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo
and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having
allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the
sum of five thousand pesos from the bank and to give that amount to the accused because the priest
lost it in a game of cards.
The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the
telegraphic request of Father Tibudan the case was reset on December 13, 1978. Because Esmea
and Alba were not duly notified of that hearing, they were not able to appear.
The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the
arraignment because complainant Father Tibudan requested the transfer of the hearing to another
date.
In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979
was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for
the last time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21, Rollo).
When the case was called on that date, the fiscal informed the court that the private prosecutor
received from complainant Father Tibudan a telegram stating that he was sick. The counsel for
petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the
accused to have a speedy trial.
Their counsel told the court: " ... we are now invoking the constitutional right of the accused to a
speedy trial of the case. ... We are insisting on our stand that the case be heard today; otherwise, it
will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused
particularly accused Alberto Alba and Generoso Esmea (pp. 50 and 52, Rollo).
Respondent judge provisionally dismissed the case as to the four accused who were present
because it "has been dragging all along and the accused are ready for the hearing" but the fiscal
was not ready with his witness. The court noted that there was no medical certificate indicating that
the complainant was really sick. The case was continued as to the fifth accused who did not appear
at the hearing. His arrest was ordered (p. 23, Rollo).
Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the
case. He attached to his motion a medical certificate under oath attesting to the fact that Father
Tibudan was sick of influenza on August 16, 1979.
The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the
impress of finality and, therefore, the case could be revived without the filing of a new information
(Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175).

The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979
(p. 26, Rollo).
On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double
jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence,
the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would
place them in double jeopardy.
The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had
appeared in court several times but the hearing was not held. The court denied the motion to
dismiss.
That order denying the motion to dismiss is assailed in this special civil action of certiorari. The
Solicitor General agrees with the petitioners that the revival of the case would place the accused in
double jeopardy since the provisional dismissal of the case without their consent was in effect an
acquittal.
The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22, Article
IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of
punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which
provides as follows:
SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall
have been convicted or acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant, by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction, and after the defendant had pleaded to
the charge, the conviction or acquittal of the defendant or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or
information.
In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before
a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the
complaint or information.
When these three conditions are present, the acquittal or conviction of the accused or the dismissal
or termination of the case without his express consent constitutes res judicata and is a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is included therein (4 Moran's Comments on
the Rules of Court, 1980 Ed., p. 240).
Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or
termination of the case without his consent precludes his subsequent indictment for the same
offense as defined in section 9.

In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal
of the grave coercion case. That provisional dismissal would not have place the petitioners in
jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with
their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the
case.
It is the practice of some judges before issuing an order of provisional dismissal in a case wherein
the accused had already been arraigned to require the accused and his counsel to sign the minutes
of the session or any available part of the record to show the conformity of the accused or his lack of
objection to the provisional dismissal.
The judge specifies in the order of provisional dismissal that the accused and his counsel signified
their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and
precludes jeopardy from attaching to the dismissal.
The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy
trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own
volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity
to the provisional dismissal. Hence, the dismissal placed them in jeopardy.
Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case
and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word
"provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil.
134; Gandicela vs. Lutero, 88 Phil. 299).

If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for
postponement of the trial is denied and upon order of the court the fiscal does not or
cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the
court upon defendant's motion shall dismiss the case, such dismissal amounting to an
acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing
Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714-717).
The dismissal of a criminal case upon motion of the accused because the prosecution was not
prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal
equivalent to an acquittal that would bar further prosecution of the defendant for the same offense
(Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes, etc.
and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105
Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs.
Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines
Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao
97 Phil. 28; People vs. Labatete, 107 Phil. 697).

WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case
against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss,
are reversed and set aside. No costs.
SO ORDERED.
Barredo (Chairman), Concepcion Jr., Abad Santos and De Castro, JJ., concur.