XII: Appeal (Rules 122, 124, 125)
(Cacao v. People)
Appeal – proceeding for review by which the whole case is
transferred to the higher court for a final determination
*Only final judgments and orders are appealable
[Riano]
Appeal not a natural right
- the right to appeal is not a natural right nor a part
of due process but merely a statutory privilege and
may be exercised only in the manner and in
accordance with the provisions of law
- once it is granted by law, its suppression would be
a violation of due process
Subject matter for review on appeal
- an appeal in a criminal case open the entire case
for review; the appellate court can correct even
errors unassigned in the appeal
 in contrast with the general rule in civil cases wherein
no error will be considered unless stated in the assignment
of errors, except when:
(a) the error affects the jurisdiction of the court over
the subject matter
(b) the error affects the validity of the judgment
appealed from or the proceedings therein
(c) the error is closely related or dependent on an
assigned error and properly argued in the brief
(d) the error is a plain error or a clerical error
Change on theory on appeal
- rule: a party cannot change his theory on appeal
nor raise in the appellate court any question of law
or of fact that was not raised in the court below or
which was not within the issue raised by the
parties in their pleadings
- rationale: this would be offensive to the basic rules
of fair play, justice and due process
Factual findings; credibility of witness
- rule: trial court’s factual findings – including its
assessment of the credibility of the witness, the
probative weight of their testimonies, and the
conclusions drawn from the factual findings – are
accorded with great respect and even conclusive
effect if duly supported by evidence
- these factual findings and conclusions assume
greater weight if they are affirmed by the CA
- rationale: having the advantage of directly
observing the deportment and manner of
testifying of the witness, the trial court is in better
position to evaluate testimonial evidence properly
(People v. Nachor)
- exception to the rule: if there is any indication that
the trial court overlooked, misunderstood, or
misapplied certain facts or circumstances which
would substantially affect the disposition of the
case  SC will not hesitate to review the same
1. Effect of an appeal
An appeal throws open the entire case for review and may
result in the increase of the penalty imposed by the Trial
Court (Mercado v. People)
CASE: Mercado v. People
F: Accused was found guilty of violation of R.A. 6538 or
Anti-Carnapping Act of 1972 and sentenced by the RTC to a
prison term of 12 years and 1 day, as minimum, to 17 years
and 4 months of reclusion temporal, as maximum.
*Note: RTC should not have used the term ―reclusion
temporal because RA 6538 is a special law.
H: On appeal, the CA increased the penalty to 17 years and
one day to 30 years, which according to the SC was the
correct penalty. The SC nonetheless modified the penalty to
17 years and one day to 22 years for the reason that the act
of violence does not merit the imposition of the full
penalty.
2. Where to appeal
(i) Rule 122, Sec. 2[a]: The appeal may be taken
to the RTC, in cases decided by the MeTC, MTC
in Cities, MTC, or MCTC
(ii) Rule 122, Sec. 2[b]: The appeal may be taken
to the CA or the SC in the proper cases
provided by law, in cases decided by the RTC
(iii) Rule 122, Sec. 2[c]: The appeal may be taken
to the SC, in cases decided by the CA
[Riano]
(a) RTC – in cases decided by the MeTC, MTC, MTC in
Cities, or MCTC
(b) CA/SC (in proper cases provided for by law) – in
cases decided by the RTC
(c) SC – in cases decided by the CA
CASE: Torres v. People
F: Torres was charged with the crime of malversation of
public funds for misappropriating checks that were
supposedly for the teachers’ and employees’ salaries and
benefits. He was convicted by the RTC. The accused filed
his Notice of Appeal where it was indicated that he was
seeking recourse and appealing the decision of the RTC
before the CA. 5 months thereafter, he filed a Manifestation
and Motion acknowledging that he filed the appeal before
the wrong tribunal. He prayed that the case be referred to
the Sandiganbayan for appropriate action. The CA
dismissed the appeal for lack of jurisdiction.
H: The designation of the wrong court does not necessarily
affect the validity of the notice of appeal. However, the
designation of the proper court should be made within the
15- day period to appeal. Once made within the said
period, the designation of the correct appellate court may
be allowed even if the records of the case are forwarded to
the CA. Otherwise, Sec. 2, Rule 50 of the ROC would apply,
which states that an appeal erroneously taken to the CA
shall not be transferred to the appropriate court, but shall
be dismissed outright.
* Appellate jurisdiction of Sandiganbayan is defined in
Paragraph 3, Sec. 4(c) of RA 8249 which states that the
Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
the regional trial courts whether in the exercise of their
own original jurisdiction or of their appellate jurisdiction
as herein provided.
* J. Velasco (separate concurring opinion)―Where one’s
liberty is at stake, it is fitting, but on a case-to-case basis,
that a window for redress should be opened for the
accused especially in cases where the accused who is
ordinarily familiar with the rules of procedure is
prejudiced by the gross mistake or negligence of his
counsel. The deprivation of an accused of liberty and/or
property should certainly receive the liberal application of
the Rules of Court to attain justice and fairness.
Q: From a judgment of conviction by the Sandiganbayan,
where and how do you appeal?
CASE: Icdang v. Sandiganbayan
F: Icdang was convicted by the Sandiganbayan for
malversation of public funds. Petitioner filed an MR before
the Sandiganbayan requesting that he be given another
chance to present his evidence, stating his inability to
attend trial. The Sandiganbayan, however, denied the
motion because the decision has already become final and
executory.
H: The SC denied the petition saying that petitioner’s MR
before the Sandiganbayan was filed 6 days late.
* SC emphasized that the special civil action of certiorari is
not the proper remedy to challenge the judgment of
conviction rendered by the SB. The accused therein should
have filed a petition for review on certiorari under Rule 45.
* Petitioner’s resort to the present special civil action after
failing to appeal within the fifteen-day reglementary
period, cannot be done. The special civil action of certiorari
cannot be used as a substitute for an appeal which the
petitioner already lost.
3. How appeal taken
(i) Rule 122, Sec. 3[a]: The appeal to the RTC, or
to the or to the CA in cases decided by the RTC
in the exercise of its original jurisdiction, shall
be by notice of appeal filed with the court
which rendered the judgment or final order
appealed from and by serving a copy thereof
upon the adverse party.
(ii) Rule 122, Sec. 3[b]: The appeal to the CA in
cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for
review under Rule 42.
(iii) Rule 122, Sec. 3[c]: The appeal in cases where
the penalty imposed by the RTC is reclusion
perpetua, life imprisonment or where a lesser
penalty is imposed for offenses committed on
the same occasion or which arose out of the
same occurrence that gave rise to the more
serious offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
imposed, shall be by notice of appeal to the CA
in accordance with paragraph (a) of this Rule.
(iv) Rule 122, Sec. 3[d]: No notice of appeal is
necessary in cases where the RTC imposed the
death penalty. The CA shall automatically
review the judgment as provided in Sec. 10 of
this Rule.
[Riano]
1. Judgment appealed from is that of the MTC –
appeal shall be to the RTC by notice of appeal filed
with the court which rendered the judgment or
final order appealed from and by serving a copy
thereof upon the adverse party (Rule 122, Sec.
3[a])
2. Judgment appealed from is that of the RTC in the
exercise of its original jurisdiction – appeal shall
be to the CA by notice of appeal filed with the
court which rendered the judgment or final order
appealed from and by serving a copy thereof upon
the adverse party (Rule 122, Sec. 3[a])
3. Judgment appealed from is that of the RTC in the
exercise of its appellate jurisdiction – appeal shall
be to the CA by filing a petition for review with
said court under Rule 42 (Rule 122, Sec. 3[b])
4. Where penalty imposed by the RTC is reclusion
perpetua or life imprisonment, or where a lesser
penalty is imposed but for offenses committed on
the same occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty for death, reclusion
perpetua or life imprisonment is imposed – appeal
shall be by notice of appeal to the CA in
accordance with Rule 122, Sec. 3[a] (Rule 122, Sec
3[b])
5. No notice of appeal id necessary in cases where
the RTC imposed the death penalty – CA shall
automatically review the judgment as provided in
Rule 122, Sec. 10 (Rule 122, Sec. 3[c])
6. When appeal if from the decision of the CA
a. appeal is generally made by filing a
petition for review on certiorari under
Rule 45 with the SC (Rule 122, Sec. 3[e])
b. in cases where CA imposes reclusion
perpetua or life imprisonment or a lesser
penalty – judgment of CA may be
appealed to the SC by notice of appeal
filed with CA (Rule 124, Sec. 3[c])
[Riano]
When appeal is to be taken
- within 15 days from promulgation of the judgment
or from notice of the final order appealed from
*period for perfecting an appeal shall be suspended from
the time a motion for new trial or reconsideration is filed
until notice of the order overruling the motion has been
served upon the accused or his counsel at which time the
balance of the period begins to run (Rule 122, Sec. 6)
Service of notice of appeal
- notice of appeal should be served upon the
adverse party or his counsel by personal service
- if personal service cannot be made, service may be
done by registered mail or by substituted service
pursuant to Secs. 7 & 8 of Rule 13 (Rule 122, Sec.
4)
Transmission of the papers to the appellate court (RTC)
- within 5 days from the filing of notice
- done by the clerk of court with whom the notice of
appeal was filed
- if appellate court is RTC – within 15 days from
receipt of notice, the parties may submit
memoranda or briefs, or may be required by the
RTC to
4. Appeal from CA to the SC
(i) Rule 124, Sec. 13[a]: Whenever the CA finds
that the penalty of death should be imposed,
the court shall render judgment but refrain
from making an entry of judgment and
forthwith certify the case and elevate its entire
record to the SC for review.
(ii) Rule 124, Sec. 13[b]: Where the judgment also
imposes a lesser penalty for offenses
committed on the same occasion or which
arose out of the same occurrence that gave
rise to the more severe offense for which the
penalty of death is imposed, and the accused
appeals, the appeal shall be included in the
case certified for review to the SC.
(iii) Rule 124, Sec. 13[c]: In cases where the CA
imposes reclusion perpetua, life
imprisonment or a lesser penalty, it shall
render and enter judgment imposing such
penalty. The judgment may be appealed to the
SC by notice of appeal filed with the CA.
CASE: Bongalon v. People
F: Bongalon was charged with the crime of child abuse
under RA 7610. The RTC and CA found him guilty beyond
reasonable doubt of the said crime. He filed a petition for
certiorari under Rule 65 to the SC to assail CA’s decision.
H: Petitioner adopted the improper remedy. He should
have filed a petition for review on certiorari under Rules
45 because his petition imputes errors of judgment, not
errors of jurisdiction. This is because his petition mentions
instances attendant during the commission of the crime
that he claims were really constitutive of justifying and
mitigating circumstances and specifies reasons why he
believes RA 7610 favors his innocence rather than his guilt
for the crime charged.
* Where the issue or question involved affects the wisdom
or legal soundness of the decision—not the jurisdiction of
the court to render said decision—the same is beyond the
province of a special civil action for certiorari. The proper
recourse of the aggrieved party from a decision of the CA is
a petition for review on certiorari under Rule 45 of the
ROC.
* The special civil action for certiorari is a remedy designed
for the correction of errors of jurisdiction and not errors of
judgment.
5. Effect of appeal by any of several accused
[Riano]
- an appeal taken by one or more of several accused
shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
favorable and applicable to the latter (Rule 122,
Sec. 11[a])
CASE: People v. Mantalaba
F: Appellant was 17 years old when the buy-bust operation
took place or when the said offense was committed, but
was no longer a minor at the time of the promulgation of
the RTC’s decision. While Sec. 38 of Rep. Act 9344 (Juvenile
Justice and Welfare Act of 2006) provides that suspension
of sentence can still be applied even if the child in conflict
with the law is already 18 years of age or more at the time
of the pronouncement of his/her guilt, Sec. 40 of the same
law limits the said suspension of sentence until the child
reaches the maximum of 21. Hence, the appellant, who is
now beyond the age of 21 years can no longer avail of the
provisions of Sections 38 and 40 of Rep. Act 9344 as to his
suspension of sentence because such is already moot and
academic.
H: The SC observed that this would not have happened if
the CA, when the case was under its jurisdiction,
suspended the sentence of the appellant. The records show
that the appellant filed his notice of appeal at the age of 19,
hence when RA 9344 became effective in 2006, appellant
was 20 years old and the case having been elevated to the
CA, the latter should have suspended the sentence of the
appellant because he was already entitled to the provisions
of Sec. 38 of RA 9344, which allows the suspension of
sentence of minors regardless of the penalty imposed.
* Court adjusted the penalty of the appellant in light of
current laws and jurisprudence.
Under Sec. 5 of RA 9165, the penalty is life imprisonment
to death. If the offender is a minor, under Sec. 98 of the
same Act imposes the penalty of reclusion perpetua to
death. Basically, this means that the penalty can now be
graduated as the law has adopted the technical
nomenclature of penalties provided for in the RPC. The
privileged mitigating circumstance of minority may now be
appreciated in fixing the penalty that should be imposed.
The RTC and CA imposed the penalty of reclusion perpetua
without considering the minority of the appellant. Thus,
the proper penalty should be one degree lower than
reclusion perpetua, which is reclusion temporal. Applying
the ISLAW, the minimum penalty should be taken from the
penalty next lower in degree which is prision mayor and
the maximum penalty shall be taken from the medium
period of reclusion temporal, there being no other
mitigating circumstance nor aggravating circumstance. The
SC then imposed the penalty of 6 years and one day of
prision mayor, as minimum, and 14 years, 8 months and 1
day of reclusion temporal, as maximum.
6. Grounds for dismissal of appeal
[BOC]
- when the appeal will put the accused in double
jeopardy (Republic v. CA)
- prosecution cannot appeal from a judgment of
acquittal (People v. Ferrer)
- where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable (People v. Duran)
- an appeal by the people will not lie if the purpose
is to correct the penalty imposed by TC or to
include in a judgment a penalty erroneously
omitted (People v. Paet)
7. Who may appeal
[Riano]
- any party may appeal from a judgment or final
order, unless the accused will be placed in a
double jeopardy (Rule 122, Sec.1)
- in the case of the People of the Philippines, only
the OSG has the authority to represent the State in
appeals of criminal cases before the CA and SC
(People v. Duca)
- in criminal cases, the SolGen is regarded as the
appellate counsel of the People of the Philippines
[Beda]
All those affected by the judgment or final order rendered:
1. Accused
2. Government
3. Offended party
4. Employers under Art. 103 of the RPC
5. Bailee
* provided that the accused is not placed in double
jeopardy
CASE: Philippine Rabbit Bus Lines, Inc. v. People
* In the absence of any collusion between the accused-
employee and the offended party, the judgment of
conviction should bind the person who is subsidiarily
liable. He cannot appeal to dispute the civil liability fixed in
a criminal case without the consent of the accused-
employee since that would result in improperly amending,
nullifying or defeating the judgment. Subsidiary liability of
the employer is incidental to and dependent on the
pecuniary civil liability of the accused.
CASE: Menchavez v. Bermudez
F: Private complainant appealed the civil aspect of the
criminal case after the accused was acquitted on the
ground of failure to prove guilt beyond reasonable doubt.
H: Court held that full payment had been made, and denied
the appeal.
* The private complainant may appeal the civil aspect of a
decision acquitting the accused for failure to prove guilt
beyond reasonable doubt.
8. Withdrawal of appeal
[Riano]
(a) appeal perfected from MTC to the RTC – appeal
may be withdrawn when so allowed by the MTC as
long as the record has not bee transmitted to the
RTC
* when appeal is withdrawn, the judgment becomes final
(Rule 122, Sec. 12)
(b) if withdrawal is sought when the case is already on
appeal – RTC may allow the appellant to withdraw
his appeal provided:
i. a motion to withdraw is filed
ii. the motion is filed before the
RTC renders judgment on the
appeal
Appeal not mooted by accused’s release on parole
- parole is not one of the modes of totally
extinguishing criminal liability
[Beda]
- An appellant may withdraw his appeal before the
record has been forwarded by the clerk of court to
the proper appellate court as provided by Sec. 8, in
which case the judgment shall become final.
- The Court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a
motion to that effect is filed before the rendition of
the judgment in the case on appeal. (People v.
Madrigal-Gonzales)
- Once appeal is withdrawn, the decision or
judgment appealed from becomes at once final
and executor. (People v. Duenñ o)
CASE: People v. Paradeza
F: Accused-appellant was sentenced to suffer the penalty of
reclusion perpetua for rape. He appealed his conviction.
Subsequently, he filed through the Public Attorney’s Office
motion to withdraw his appeal but this was made only
after the OSG had filed the Brief for Appellee. However, the
Court had required appellant to file his Reply Brief per its
Resolution.
H: It could therefore be said that the accused-appellant had
not yet completed the process of filing briefs when he
moved to withdraw his appeal, a situation which may call
for a more liberal rule. Additionally, it is the Court’s
impression that from the records of this case, appellant is
hardly literate functionally and of very low socio-economic
standing as a mere bangus fry catcher. In making his
appeal, he is actually wagering his life as against his
sentence below, a point not often stressed to or understood
by the convict. In any event, Court is persuaded that it has
the discretion whether to grant or not the withdrawal
sought.
* Under Rule 50, Section 3 of the 1997 Rules of Civil
Procedure, the withdrawal of an appeal is a matter of right
before the filing of the appellee’s brief. After that,
withdrawal may be allowed in the discretion of the court.
* SC explained that a person accused and convicted of an
offense may withdraw his appeal not only because he is
guilty as charged. There could be other reasons. It could be
due to his prior erroneous perception of the applicable
provision of law, or of the decision itself. He may fell that to
seek a pardon might be the better and faster remedy.
Regardless of his reasons, he is within his rights to seek the
withdrawal of his appeal. This option should not be closed
to the accused except for clearly important substantial
reasons of law and policy.
CASE: People v. Rocha
F: The accused was sentenced to suffer the penalty of
reclusion perpetua for the crime of robbery with homicide.
He appealed to the CA. While the case was pending appeal,
two of his co-accused withdrew his appeal, which the CA
granted. The CA affirmed his judgment of conviction. He
appealed to the SC. Subsequently, he moved to withdraw
the appeal, which the People opposed arguing that review
is mandatory.
H: According to the SC, the mandatory review is only
required for cases where the penalty imposed is death.
Where the penalty imposed is reclusion perpetua or life
imprisonment, a review of the trial court decision is
conducted only when the accused files a notice of appeal.
As the penalty imposed by the trial court and the CA in the
case at bar is reclusion perpetua, the review by the SC is
not mandatory and, therefore, the accused-appellants can
validly withdraw their appeal. The granting of a Motion to
Withdraw Appeal is however addressed to the sound
discretion of the Court. After a case has been submitted to
the court for decision, the appellant cannot, at his election,
withdraw the appeal. In this case, the SC granted the
withdrawal of the appeal.
9. Appeals in special cases
a) Appellate jurisdiction to the Sandiganbayan
CASE: Torres v. People
* Appellate jurisdiction of Sandiganbayan is defined in
Paragraph 3, Sec. 4(c) of RA 8249 which states that the
Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
the regional trial courts whether in the exercise of their
own original jurisdiction or of their appellate jurisdiction
as herein provided.
b) Sec. 268 of BP 881, as amended (Omnibus Election Code
of the Philippines)
Sec. 268. Jurisdiction of courts. - The regional trial court
shall have the exclusive original jurisdiction to try and
decide any criminal action or proceedings for violation of
this Code, except those relating to the offense of failure to
register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial courts.
From the decision of the courts, appeal will lie as in other
criminal cases.
CASE: Comelec v. Aguirre
F: COMELEC filed a complaint against Genovia for violation
of Omnibus Election Code which penalizes any person who
votes in substitution for another whether with or without
the latter’s knowledge and/or consent, punishable with
imprisonment of not less than one year but not more than
six years. COMELEC’s complaint against Ma. Leonisa
Genovia was dismissed by RTC for lack of jurisdiction. RTC
says MTC, MCTC, MeTC (first-level courts) have jurisdiction
because of BP 129 Sec 32(2) which says that those courts
shall have original jurisdiction over offenses punishable
with imprisonment not exceeding 6 years.
H: SC says RTC has jurisdiction because of Omnibus Code
Sec 268 which says that RTC has original jurisdiction over
violations of the Omnibus Code, and this should be deemed
an exception to the general rule laid down in BP 129 Sec
32(2).
* Congress has the plenary power to define, prescribe and
apportion the jurisdictions of various courts. Hence, it may,
by law, provide that a certain class of cases should be
exclusively heard and determined by a specific court.
Section 268 of Omnibus Election Code is one such and
must thus be construed as an exception to BP 129, the
general law on jurisdiction of courts
c) Jurisdiction of the CTA
Republic Act No. 9282 – An Act Expanding The Jurisdiction
Of The Court Of Tax Appeals (CTA), Elevating Its Rank To
The Level Of A Collegiate Court With Special Jurisdiction
And Enlarging Its Membership, Amending For The Purpose
Certain Sections Or Republic Act No. 1125, As Amended,
Otherwise Known As The Law Creating The Court Of Tax
Appeals, And For Other Purposes
 There is hereby created a Court of Tax Appeals (CTA)
which shall be of the same level as the Court of Appeals,
possessing all the inherent powers of a Court of Justice,
and shall consist of a Presiding Justice and five (5)
Associate Justices.
- if no decision is reached after re-deliberation, the
judgment of conviction of the lower court shall be
reversed and the accused acquitted (Rule 125,
Sec.3)

Notes: [Riano]

Appeal from the civil aspect

- shall not affect the criminal aspect of the judgment
or order appealed from (Rule 122, Sec. 11[b])

Period to apply for probation

- within the period for perfecting an appeal (15
days from the promulgation of the judgment or
from notice of the final order appealed from)

Stay of execution
- upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be
stayed as to the appealing party (Rule 122, Sec.
11[c])
- the benefit of the stay of execution afforded to a
co-accused who timely files an appeal cannot be
extended to those who failed to file the same

Power of the CA to receive evidence

- CA shall have the power to try cases and conduct
hearings, receive evidence and perform all acts
necessary to resolve factual issues raised in cases
falling within it original and appellate jurisdiction,
including the power to grant and conduct new trial
and further proceedings
* trials/hearings conducted in CA must be continuous and
must be completed in 3 months, unless extended by the
Chief Justice (Rule 124, Sec.12)

Dismissal of appeal by the CA

- CA may, upon motion of the appellee or motu
propio, dismiss the appeal of the accused-
appellant who eludes the jurisdiction of the court
over his person (Rule 124, Sec.8[2])

Grounds for reversal of judgment or its modification

- CA is mandated not to reverse or modify a
judgment unless it finds after an examination of
the record and the evidence that error has been
committed which injuriously affects the
substantial rights of the appellant (Rule 125,
Sec.2)

Applicability of the rules on appeal in the CA to the SC

- unless otherwise provided by the Constitution or
by law, the procedure in the SC in original and in
appealed cases shall be the same as in the CA
(Rule 125, Sec.1)

Rule if the opinion of the SC en banc is equally divided

- case shall be again deliberated upon