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G.R. Nos. 89095 & 89555 November 6, 1989 SIXTO P. CRISOSTOMO, petitioner, vs.

SECURITIES AND EXCHANGE COMMISSION, SPOUSES SHOJI YAMADA and MICHIYO YAMADA and SPOUSES TOMOTADA ENATSU and EDITA ENATSU, respondents. GRIO-AQUINO, J.: In his petition for certiorari, 1 the petitioner seeks to annul and set aside the en banc resolution dated February 14, 1989 of the Securities and Exchange Commission in SEC EB Case No. 191 and the concurring opinions thereto (Annexes F, G, and H, pp. 39-62, Rollo), as well as its orders dated June 27, 1989 and July 21, 1989 (Annexes M and 0, pp. 83-86, Rollo) directing the corporate secretary of the United Doctors Medical Center, Inc. (hereafter "UDMC") to call a special meeting of the stockholders to elect the officers and directors in the implementation of the SEC's aforementioned en banc resolution of February 14, 1989, which the Court of Appeals affirmed in its decision dated June 8, 1989 in CA-G.R. SP No. 17435, entitled "Sixto Crisostomo, petitioner vs. Securities and Exchange Commission, Spouses Dr. Shoji Yamada and Michiyo Yamada, and Spouses Dr. Tomotada Enatsu and Edita Enatsu, respondents." On August 1, 1989, the Court of Appeals denied Crisostomo's motion for reconsideration of its decision. On August 24, 1989, he filed a petition for review of said decision in this Court (G.R. No. 89555) which was originally assigned to the Third Division, but was later consolidated with G.R. No. 89095. At first blush, the petitions sound like a patriotic defense of the Constitution, but, at bottom they are only an artful scheme to defraud a group of foreign investors who had been persuaded by the officers of UDMC to invest P57 million to save the corporation (its assets as well as those of the Crisostomo's) from imminent foreclosure by the Development Bank of the Philippines (DBP) to which UDMC was indebted in the sum of P55 million. It is the kind of operation that sullies our collective image as a people and sets back our government's heroic efforts to attract foreign investments to our country. The antecedent facts, culled from the decision of the Court of Appeals, are as follows: Sixto Crisostomo, Felipe Crisostomo (deceased), Veronica Palanca, Juanito Crisostomo, Carlos Crisostomo, Ricardo Alfonso, Regino Crisostomo and Ernesto Crisostomo (known as the Crisostomo group) were the original stockholders of the United Doctors Medical Center (UDMC) which was organized in 1968 with an authorized capital stock of P1,000,000 (later increased to P15,000,000 in 1972). They owned approximately 40% of UDMC's outstanding capital stock, while the 60% majority belonged to the members of the United Medical Staff Association (UMSA), numbering approximately 150 doctors and medical personnel of UDMC. Despite their minority status, the Crisostomo group has managed UDMC from its inception, with Juanito Crisostomo as president, Ricardo Alfonso, Sr. as chairman of the board, Carlos Crisostomo as corporate secretary and Sixto Crisostomo as director and legal counsel. In 1988, UDMC defaulted in paying its loan obligation of approximately P55 million to the DBP. In the last quarter of 1987, UDMC's assets (principally its hospital) and those of

the Crisostomos which had been given as collateral to the DBP, faced foreclosure by the Asset Privatization' rust (APT), which had taken over UDMC's loan obligation to the DBP. To stave off the threatened foreclosure, UDMC, through its principal officers, Ricardo Alfonso and Juanito Crisostomo, persuaded the Yamadas and Enatsu (Shoji Yamada and Tomotada Enatsu are Japanese doctors) to invest fresh capital in UDMC. The wife of Tomotada Enatsu, Edita Enatsu, is a Filipina. They invested approximately P57 million in UDMC. The investment was effected by means of: (1) a Stock Purchase Agreement; and (2) an Amended Memorandum of Agreement whereby the group subscribed to 82.09% of the outstanding shares of UDMC. Both transactions were duly authorized by the board of directors and stockholders of UDMC. They were submitted to, scrutinized by, and, finally, approved by the Board of Investments, the Central Bank of the Philippines, and the Securities and Exchange Commission. The elaborate governmental approval process was done openly and with full knowledge of all concerned, including Sixto Crisostomo, the corporate legal counsel. Upon the completion of the governmental approval process, shares of stock, duly signed by UDMC's authorized officers, were issued to the Yamadas and Enatsus. This capital infusion not only saved the assets of the UDMC (especially the hospital) from foreclosure but also freed the Crisostomos from their individual and solidary liabilities as sureties for the DBP loan. As it had been agreed in the Amended Memorandum of Agreement between UDMC and the Japanese group that upon the latter's acquisition of the controlling interest in UDMC, the corporation would be reorganized, a special stockholders' meeting and board of directors' meeting were scheduled to be held on August 20, 1988. However, on the eve of the meetings, i.e., on August 19, 1988, Sixto Crisostomo, supposedly acting for himself, filed SEC Case No. 3420 against Juanito Crisostomo, Ricardo Alfonso, Shoji Yamada, Michiyo Yamada, Tomotada Enatsu and Edita Enatsu, praying, among other things, (1) to stop the holding of the stockholder's and board of directors' meetings; (2) to disqualify the Japanese investors from holding a controlling interest in UDMC and from being elected directors or officers of UDMC; and (3) to annul the Memorandum of Agreement and Stock Purchase Agreement because they allegedly did not express the true agreement of the parties (pp. 194-203, Rollo). Two weeks later, on September 2, 1988, Crisostomo filed Civil Case No. 88-1823 in the Regional Trial Court of Makati, Metro Manila, where he also sought a preliminary injunction and the Identical reliefs prayed for by him in SEC Case No. 3420 (pp. 317335, Rollo). It was dismissed by the trial court for lack of jurisdiction and is pending appeal in the Court of Appeals where it is docketed as CA-G.R. No. 20285-CV. On September 13, 1988, the hearing officer, Antonio Esteves, granted the application for a writ of preliminary injunction enjoining the respondents

... from holding the special meeting of the stockholders and of the Board of Directors of United Doctors Medical Center, [Inc.] (UDMC) scheduled on August 20, 1988 or any subsequent meetings; from adopting resolutions to elect new directors and appoint new officers; from approving resolutions directly or indirectly affecting the operations, organizational structure, and financial condition of the corporation, ... and from disbursing funds of the said corporation except those ordinary day-to-day expenses pending the final termination of this case. (p. 30, Rollo.) The private respondents' motion for reconsideration of this order was denied by the hearing officer on November 16, 1988. In the same order, he created a management committee to administer UDMC (pp. 32-35, Rollo). The respondents appealed by certiorari to the SEC en banc. On February 14,1989, Commissioner Jose C. Laureta, with whom Commissioners Rosario N. Lopez and Gonzalo T. Santos separately concurred, set aside the preliminary injunction issued by Esteves and the management committee which he created. The dispositive part of the decision reads: Wherefore, premises considered, the instant petition for certiorari is GRANTED and the Commission en banc ORDERS: 1. That the questioned orders of the hearing officer in SEC Case No. 3420 of September 13, 1988 and November 16, 1988, be immediately vacated; 2. That a special stockholders' meeting of UDMC be held for the purpose of allowing the stockholders of record of the corporation to elect a new board of directors, which special meeting is hereby directed to be scheduled within 10 days from receipt of a copy of this resolution by the incumbent corporate secretary or acting corporate secretary of UDMC, and to this end, that such officer be, as he hereby is, directed: (a) to issue a call for such special meeting and serve notice thereof on all stockholders of record of the corporation, in accordance with section 6 of article VII of UDMC's by-laws; and (b) to submit to the Commission, through the Commission Secretary, a written report of his compliance with this particular order of the Commission, not later than 5 days prior to the scheduled date of the proposed UDMC special stockholders' meeting; 3. That upon the election of a new board of directors of UDMC, that such board be, as it hereby is, enjoined to meet as promptly as possible for the purpose of electing a new set of officers of the corporation in order to ensure its proper management; 4. That the hearing officer be, as he hereby is, directed to continue with the proceedings of SEC Case No. 3420, and to do so with all deliberate speed, for the purpose of resolving the alleged violation of certain rights of Sixto Crisostomo, as a stockholder of UDMC particularly, his right to inspect the corporate books and records of UDMC, his preemptive right to subscribe to the P60 million increase in the authorized capital of UDMC, and his appraisal rights; and

5. That the board of directors and officers of UDMC be, as they hereby are, ordered to submit to the Commission, through the Chairman, a written report as to its plans as regards its nursing school, such report to be submitted at least one month prior to the commencement of the school year 1989-1990. SO ORDERED. (pp. 49-50, Rollo.) Sixto Crisostomo sought a review of the SEC's en banc resolution in the Court of Appeals (CAG.R. SP No. 17435). On June 8, 1989, the Court of Appeals dismissed his petition and lifted the temporary restraining order that it had issued against the SEC's resolution (Annex K, pp. 65-81, Rollo). Petitioner filed a motion for reconsideration (pp. 418-434, Rollo). The Court of Appeals required the private respondents to comment but it denied the petitioner's motion to reinstate the writ of preliminary injunction (Annex L, p. 82, Rollo), On motion of the private respondents (Annex K, p. 413, Rollo), the SEC en banc issued an order on June 27, 1989 directing the secretary of UDMC to call a special stockholders' meeting to elect a new board of directors and officers of the corporation (Annex F). Petitioner asked the SEC to recall that order on account of his pending motion for reconsideration in the Court of Appeals. The motion was opposed by the private respondents. On July 21, 1989, the SEC denied petitioner's motion (p. 86, Rollo). Whereupon, he filed this petition for certiorari and prohibition with a prayer for preliminary injunction alleging that the SEC en banc abused its discretion: 1. in setting aside Esteves' orders 2. in allowing the Japanese group to have control of UDMC for it will result in culpable violation of Section 7, Article XII of the 1987 Constitution which provides that no private lands shall be transferred or conveyed except to individuals or corporations qualified to acquire or hold land of the public domain, meaning corporations at least sixty per centum of whose capital is owned by Filipino citizens (Sec. 2, Article XII, 1987 Constitution); and 3. in allowing the Japanese investors to own more than 40% of the capital stock of UDMC (which operates a nursing and midwifery school) in violation of Section 4 (2) Article XIV of the 1987 Constitution which provides that educational institutions ... shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The public and private respondents, in their comments on the petition, asked that the petition be dismissed and that the petitioner be cited for contempt for forum-shopping. We find no merit in the petition. The first allegation that the SEC en banc erred in reversing the orders of the hearing officer, Esteves, is the same ground raised by the petitioner in CA-G.R. No. SP 17435. The issue is frivolous for the authority of the SEC en banc to review, revise, reverse, or affirm orders of its hearing officers is too elementary to warrant any debate. Equally unmeritorious are the second and third grounds of the petition that the P57 million investment of the Japanese group in UDMC violates the constitutional provisions restricting the transfer or conveyance of private lands (Art. XIII, Sec. 7, 1987 Constitution) and the ownership

of educational institutions (Art. XVI, Sec. 14[a], 1987 Constitution), to citizens of the Philippines or corporations at least 60% of the capital of which is owned by Filipino citizens. While 82% of UDMC's capital stock is indeed subscribed by the Japanese group, only 30% (equivalent to 171,721 shares or P17,172.00) is owned by the Japanese citizens, namely, the Yamada spouses and Tomotada Enatsu. 52% is owned by Edita Enatsu, who is a Filipino. Accordingly, in its application for approval/registration of the foreign equity investments of these investors, UDMC declared that 70% of its capital stock is owned by Filipino citizens, including Edita Enatsu. That application was approved by the Central Bank on August 3, 1988 (p. 249, Rollo,). The investments in UDMC of Doctors Yamada and Enatsu do not violate the Constitutional prohibition against foreigners practising a profession in the Philippines (Section 14, Article XII, 1987 Constitution) for they do not practice their profession (medicine) in the Philippines, neither have they applied for a license to do so. They only own shares of stock in a corporation that operates a hospital. No law limits the sale of hospital shares of stock to doctors only. The ownership of such shares does not amount to engaging (illegally,) in the practice of medicine, or, nursing. If it were otherwise, the petitioner's stockholding in UDMC would also be illegal. The SEC's orders dated June 27, 1989 and July 21, 1989 (directing the secretary of UDMC to call a stockholders' meeting, etc.) are not premature, despite the petitioner's then pending motion for reconsideration of the decision of the Court of Appeals. The lifting by the Court of Appeals of its writ of preliminary injunction in CA-G.R. SP No. 17435 cleared the way for the implementation by the SEC's en banc resolution in SEC EB Case No. 191. The SEC need not wait for the Court of Appeals to resolve the petitioner's motion for reconsideration for a judgment decreeing the dissolution of a preliminary injunction is immediately executory. It "shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal." (Sec. 4, Rule 39, Rules of Court; Marcelo Steel Corp. vs. Court of Appeals, 54 SCRA 89 [1973]; Aguilar vs. Tan, 31 SCRA 205 [1970]; Sitia Teco vs. Ventura, 1 Phil. 497 [1902]; Watson & Co., Ltd. vs. M. Enriquez, I Phil. 480 [1902]). We now address the public and private respondents' separate motions to dismiss the petition and to cite Crisostomo and his counsel for contempt of court for forum-shopping. The records show that Crisostomo had two actions pending in the Court of Appeals (CA-G.R. No. SP 17435 and CA-G.R. No. 20285 CV) when he filed the petition for certiorari (G.R. No. 89095) in this Court on July 27, 1989. The case docketed as CA-G.R. No. 20285-CV, is his appeal from the decision of the Regional Trial Court of Makati, dismissing his complaint for annulment of the Memorandum of Agreement and the Stock Purchase Agreement between UDMC and the Japanese investors. CA-G.R. No. SP 17435 is his petition for certiorari to review the SEC's en banc resolution upholding those transactions and ordering the holding of a stockholders meeting to elect the directors of the UDMC, and of a board of directors meeting to elect the officers. Notwithstanding the pendency of those two cases in the Court of Appeals, Crisostomo filed this petition for certiorari 1 and prohibition on July 27, 1989 where he raises the same issues that he raised in the Court of Appeals. The prayer of his petition in CA-G.R. No. SP 17435 reads thus: 3) After hearing on the merits, judgment be rendered:

a) Annulling and setting aside the questioned rulings of the respondent COMMISSION 2 for having been issued with grave abuse of discretion tantamount to lack or excess of jurisdiction; and b) Making permanent the preliminary injunction issued in this case against the respondents. (p. 241, Rollo.) In his petition for certiorari (G.R. No. 89095), he also prays that 1. Upon the filing of this petition, a temporary restraining order issue enjoining respondents, their representatives or agents from implementing or executing the SEC opinions (Annexes "F", "G" and "H") and its June 27 and July 21,1989 orders (Annexes "M" and "O") until further orders from the Honorable Court. xxx xxx xxx 3. After notice, this petition be given due course and a writ of preliminary injunction be issued for the same purpose and effect upon such terms and conditions the Honorable Court may impose; and thereafter, judgment be rendered granting the writ prayed for and annulling and setting aside the said opinions rendered by the SEC in their stead, affirming the orders of the Hearing Officer (Annexes "A" and "B"). (pp. 27-28, Rollo.) Additionally, in his petition for review (G.R. No. 89555) he prays this Court to giant "all the reliefs" prayed for by him in CA-G.R. SP No. 17435. Here is a clear case of forum-shopping. There is forum-shopping whenever as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was brought, has no jurisdiction. (Villanueva vs. Adre, G.R. No. 8063, April 27, 1989.) (p. 303, Rollo) Forum-shopping is prohibited by the Interim Rules of Court for it trifles with the courts and abuses their processes (E. Razon, Inc. vs. Phil. Port Authority, 101 SCRA 450). Section 17 of the Interim Rules of Courts provides: 17. Petitions for writs of certiorari, etc., No petition for certiorari, mandamus, prohibition, habeas corpus or quo warranto may be filed in the Intermediate Appellate Court if another similar petition has been filed or is still pending in the Supreme Court. Nor may such petition be filed in the Supreme Court if a similar petition has been filed or is still pending in the Intermediate Appellate Court, unless it be to review the action taken by the Intermediate Appellate Court on the petition filed with it. A violation of this rule shall constitute contempt of court and shall be a cause for the summary dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or party concerned. (Interim Rules of Court.)

Forum-shopping makes the petitioner subject to disciplinary action and renders his petitions in this Court and in the Court of Appeals dismissible (E. Razon, Inc. vs. Philippine Port Authority, et al., G.R. No. 75197, Resolution dated July 31, 1986; Buan vs. Lopez, Jr., 145 SCRA 34, 38-39; Collado vs. Hernando, L-43886, May 30, 1988). For this reason, if not for their lack of merit, the petitions should be, as they are hereby, dismissed. WHEREFORE, these petitions are dismissed for lack of merit. The temporary restraining order which this Court issued on August 7, 1989 in G.R. No. 89095 is hereby lifted. The Court of Appeals is ordered to immediately dismiss CA-G.R. CV No. 20285. The petitioner and his counsel are censured for engaging in forum-shopping. The petitioner is further ordered to pay double costs in this instance. SO ORDERED.

G.R. No. 148194

April 12, 2002

WILLY TAN y CHUA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondents. VITUG, J.: On 12 December 1996, petitioner Willy Tan was found guilty of bigamy by the Regional Trial Court, Branch 75, of San Mateo, Rizal. He was sentenced to suffer a prison term of prision correccional in its medium period ranging from two (2) years, four (4) months, and one (1) day, to four (4) years and two (2) months. On 23 December 1996, petitioner applied for probation. On 8 January 1997, the application was granted by the trial court but the release order was withheld in view of the filing by the prosecution, on 21 January 1997, of a motion for modification of the penalty. The prosecution pointed out that the penalty for bigamy under Article 349 of the Revised Penal Code was prision mayor and the impassable penalty, absent any mitigating nor aggravating circumstance, should be the medium period of prision mayor, or from eight (8) years and one (1) day to ten (10) years. Thus, the prosecution argued, petitioner was not eligible for probation. The trial court denied the motion of the prosecution for having been filed out of time since the decision sought to be modified had already attained finality. Indeed, petitioner had meanwhile

applied for probation. Upon motion of the prosecution, however, the trial court reconsidered its order and rendered an amended decision, promulgated on 10 July 1998, concluding thusly: "WHEREFORE, premises considered, judgment is hereby rendered finding accused Willy Tan GUILTY beyond reasonable doubt of the crime of Bigamy and applying the Indeterminate Sentence Law, is hereby sentenced to suffer a minimum prison term of prision [correccional] TWO (2) YEARS, FOUR (4) MONTHS AND ONE (1) DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1) DAY."1 On 13 July 1998, petitioner filed a notice of appeal with the trial court and elevated the case to the Court of Appeals, contending that "THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION INCREASING THE PENALTY AFTER THE SAME HAD ALREADY BECOME FINAL AND EXECUTORY."2 The Court of Appeals, in a decision, dated 18 August 2000, dismissed petitioner's appeal on the ground that petitioner raised a pure question of law. Citing Article VIII, Section 5(2)(e), of the Constitution, the appellate court explained that jurisdiction over the case was vested exclusively in the Supreme Court and that, in accordance with Rule 122, Section 3(e), of the Rules of Criminal Procedure, the appeal should have been brought up by way of a petition for review on certiorari with this Court and not by merely filing a notice of appeal before the trial court. Petitioner filed a motion for reconsideration which, on 18 May 2001, was denied by the appellate court. The petition for review on certiorari before this Court raised the following issues: "I. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING SECTION 2, RULE 50 ON DISMISSAL OF IMPROPER APPEAL TO THE COURT OF APPEALS AS THE SAID SECTION REFERS TO AN APPEAL UNDER RULE 41 IN ORDINARY CIVIL ACTION BUT NOT TO AN APPEAL IN CRIMINAL CASES WHICH IS GOVERNED BY RULE 122 OF THE REVISED RULES ON CRIMINAL PROCEDURE. "II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE SUPREME COURT HAS EXCLUSIVE APPELLATE JURISDICTION ON PURE QUESTIONS OF LAW. "III. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT BECAUSE THE APPEAL RAISED PURE QUESTIONS OF LAW, IT IS WITHOUT JURISDICTION TO RESOLVE THE ISSUE RAISED IN THE APPEAL. "IV. THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE APPEAL OUTRIGHT INSTEAD OF DECLARING THE AMENDED DECISION VOID FOR UTTER WANT OF JURISDICTION.1wphi1.nt "V. THE COURT OF APPEALS ERRED IN HOLDING THAT RULE 65 IS THE PROPER REMEDY TO RAISE THE ISSUE OF JURISDICTION AND IF SO IN NOT TREATING THE APPEAL AS A SPECIAL CIVIL ACTION FOR CERTIORARI."3

In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law.4 While this right is statutory, once it is granted by law, however, its suppression would be a violation of due process, itself a right guaranteed by the Constitution.5 Section 3(a), Rule 122 of the Rules of Criminal Procedure states: "Section 3. How appeal is taken. (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (Emphasis supplied). The above rule is plain and unambiguous the remedy of ordinary appeal by notice of appeal, although not necessarily preclusive of other remedies provided for by the rules, is open and available to petitioner. The notice of appeal was timely filed by petitioner on 13 July 1998, three days after the questioned decision was promulgated.6 It was a remedy that the law allowed him to avail himself of, and it threw the whole case effectively open for review on both questions of law and of fact whether or not raised by the parties. Neither the Constitution nor the Rules of Criminal Procedure exclusively vests in the Supreme Court the power to hear cases on appeal in which only an error of law is involved.7 Indeed, the Court of Appeals, under Rule 42 and 44 of the Rules of Civil Procedure, is authorized to determine "errors of fact, of law, or both."8 These rules are expressly adopted to apply to appeals in criminal cases,9 and they do not thereby divest the Supreme Court of itsultimate jurisdiction over such questions. Anent the argument that petitioner should have filed a petition for certiorari under Rule 65, it might be pointed out that this remedy can only be resorted to when there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.10 Appeal, being a remedy still available to petitioner, a petition for certiorari would have been premature. In fine, petitioner had taken an appropriate legal step in filing a notice of appeal with the trial court. Ordinarily, the Court should have the case remanded to the Court of Appeals for further proceedings. The clear impingement upon petitioner's basic right against double jeopardy,11 however, should here warrant the exercise of the prerogative by this Court to relax the stringent application of the rules on the matter. When the trial court increased the penalty on petitioner for his crime of bigamy after it had already pronounced judgment and on which basis he then, in fact, applied for probation, the previous verdict could only be deemed to have lapsed into finality. Section 7, Rule 120, of the Rules on Criminal Procedure that states "Sec. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation"-

implements a substantive provision of the Probation Law which enunciates that the mere filing of an application for probation forecloses the right to appeal. "SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best: Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment or conviction. "Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. "An order granting or denying probation shall not be appealable. (As amended by PD 1257, and by PD 1990, Oct. 5, 1985.)"12 Such a waiver amounts to a voluntary compliance with the decision and writes finis to the jurisdiction of the trial court over the judgment.13 There is no principle better settled, or of more universal application, than that no court can reverse or annul, reconsider or amend, its own final decree or judgment.14 Any attempt by the court to thereafter alter, amend or modify the same, except in respect to correct clerical errors, would be unwarranted. WHEREFORE, the petition is given due course. The assailed amendatory judgment of the trial court is SET ASIDEand its decision of 12 December 1996 is REINSTATED. No costs. SO ORDERED. EN BANC G.R. No. 148194 April 12, 2002

WILLY TAN y CHUA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DISSENTING OPINION MENDOZA, J.: The reasons for my disagreement with the majority will be spelled out in detail, but in brief they are as follows: (1) The case before the Court of Appeals did not involve an error of judgment but an alleged error of jurisdiction and, therefore, appeal was not the appropriate remedy to bring the matter to that court. (2) Even assuming the case involved an error of judgment and therefore appeal was the appropriate remedy open to petitioner, the appeal should have been brought before this Court and not the Court of Appeals, and it should not be by mere notice of appeal but by a petition for review. (3) The correct remedy is certiorari. (4) Even equity will not excuse

petitioner's failure to observe the rules for seeking a review, and this Court is not justified in deciding the issue which petitioner should have first brought before the Court of Appeals. There is no dispute as to the following facts. Petitioner Willy Tan and Mildred Gococo-Tan were married on January 14, 1979. On November 28, 1981, while their marriage was subsisting, petitioner contracted marriage with Estela G. Infante. On the complaint of Mildred Gococo-Tan, petitioner and Estela G. Infante were charged with bigamy. The case was filed before the Regional Trial Court, Branch 75, San Mateo, Rizal, which, on December 12, 1996, found petitioner Willy Tan guilty of bigamy and sentenced him "to suffer a prison term of prision correccional in its medium period ranging from two (2) years, four (4) months and one (1) day to four (4) years and two (2) months." The case against Estela g. Infante, who was at large, was ordered archived without prejudice to its revival upon her arrest. On the basis of the penalty imposed on him, petitioner applied for probation on December 23, 1996. His application was granted by the trial court in its order of January 8, 1997, but release of the order was withheld in view of the filing on January 21, 1997 by the prosecution of a motion for modification of the penalty. The prosecution pointed out that the penalty for bigamy prescribed under Art. 349 of the Revised Penal Code is prision mayor and that the maximum imposable penalty, in the absence of any mitigating or aggravating circumstances, is the medium period of prision mayor, which is from eight (8) years and one (1) day to ten (10) years. Petitioner was thus not eligible for probation, it was argued. On August 5, 1997, the trial court denied the prosecution's motion for having been filed out of time, the decision sought to be modified having become final when petitioner applied for probation. However, upon motion of the prosecution, the trial court reconsidered its order and, on April 14, 1998, amended the dispositive portion of its decision as follows: WHEREFORE, premises considered, judgment is hereby rendered finding accused Willy tan GUILTY beyond reasonable doubt of the crime of Bigamy and applying the Indeterminate Sentence Law, is hereby sentenced to suffer a minimum prison term of prision [correccional] of TWO (2) YEARS, FOUR (4) MONTHS AND ONE (1) DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1) DAY.1 The decision, as thus amended, was promulgated on July 10, 1998. Petitioner appealed to the Court of Appeals by filing a notice of appeal with the trial court on July 13, 1998. Petitioner contended that THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION INCREASING THE PENALTY AFTER THE SAME HAD ALREADY BECOME FINAL AND EXECUTORY.2 In its decision, dated August 18, 2000, now the subject of this review, the Court of Appeals3 dismissed for lack of jurisdiction petitioner's appeal on the ground that it raised a pure question of law. Petitioner filed a motion for reconsideration, but his motion was denied by the Court of Appeals in its resolution of May 18, 2001. In dismissing petitioner's appeal from the amended decision of the Regional Trial Court, the Court of Appeals held that the appeal raised only a question of law; that, pursuant to Art. VIII,

5(2)(e) of the Constitution, appellate jurisdiction over the case was vested exclusively in the Supreme Court; and that, in accordance with Rule 122, 3(e) of the Rules of Criminal Procedure, the appeal should be brought by filing with this Court a petition for review on certiorari, not by filing a notice of appeal in the trial court. This is a petition for review on certiorari of the decision of the Court of Appeals. Rule 122, 3 of the Rules of Criminal Procedure provides: How appeal taken. (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court isreclusion 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 of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section. (d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule. (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. The majority holds that petitioner's appeal to the Court of Appeals by mere notice is justified under Rule 122, 3(a) as above quoted. Petitioner argues that Rule 44, 15 in fact allows assignments of errors to be made concerning questions of law or fact in appeals to the Court of Appeals. The Court thus sustains the following contention of petitioner: . . . Rule 122 governing appeals in criminal cases does not direct as it does in ordinary appeals in civil cases under Rule 41 which provides that in all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. Under Rule 122(a), the appeal to the Regional Trial Court, or to the Court of Appeals in criminal cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party unfettered by any restriction on the questions that may be raised on appeal[.] Section 3(d) Rule 122 of the 1985 Rules on Criminal Procedure transposed to par. (e) cited in the footnote by the Court of [A]ppeals decision merely provides that "All other

appeals to the Supreme Court shall be by petition for certiorari." As worded in the present rule "Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45." It did not direct as it does in Rule 41 that appeal in criminal cases on pure questions of law shall only be to the Supreme Court. What the rule directs is that when an appeal is to be made to the Supreme Court the appeal shall be by petition for review. Rule 41 cannot likewise to applied by analogy in appeals in criminal cases since Rule 41 is not among the rules that was expressly adopted to apply to appeals in criminal cases. Under Section 18 of Rule 124: SEC. 18. Application of certain rules in civil procedure to criminal cases. The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed civil cases shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provisions of this Rule. The exclusion of Rule 41 which refers to appeals in civil cases from Rule 122 which refers to appeals in criminal cases clearly indicates that the modes of appeal in ordinary civil actions is not applicable in criminal cases. On the other hand, Section 18 of the Rule 122 expressly provides that Rule 44 on procedure in the Court of Appeals in ordinary appealed cases shall be applied in criminal cases. As will hereafter be shown[,] Rule 44, like Rules 42 and 43 alternatively allows assignment of errors on questions of fact or of law, meaning a[n] assignment of error only on pure questions of law are allowable in appeals to the Court of Appeals. Section 18 clearly connotes that when the rules allow the application of a particular rule in a particular situation, it does so expressly. Note that Rule 47 on Annulment of Judgments was also excluded. I respectfully disagree with the majority ruling for the following reasons: First. Appeal is not the appropriate remedy because it is not an error of judgment, but an error of jurisdiction allegedly committed by the trial court, which petitioner was raising in the Court of Appeals. The question whether the trial court could correct an error in computing the penalty after its decision had become final was not passed upon by the trial court in deciding the criminal case before it but was determined by it only as an incident of the case. Indeed, the issue in that case was whether petitioner Willy Tan y Chua was guilty of bigamy as the trial court found. If petitioner did not agree with his conviction, an appeal by mere notice to that effect would have been perfectly correct under Rule 122, 3(a).1wphi1.nt But the decision of the trial court on this question has never been disputed by petitioner. No error of judgment had been imputed to the trial court. Rather, what petitioner questioned was the power of the trial court to amend its decision to correct a mistake it had made in fixing the maximum term of the sentence, after the decision had become final. This is a question of jurisdiction. There is therefore no basis for applying Rule 122, 3(a) of the Rules of Criminal Procedure. While a question of jurisdiction may be raised on appeal, in the context of this case, this was not possible because the majority's premise is precisely that the trial court had lost jurisdiction over the case as its decision had become final while at the same time saying that appeal was petitioner's appropriate remedy. Nor can it be argued that petitioner could not have appealed until

the trial court modified its judgment because petitioner was not questioning the original decision but only the decision as modified. Amendments retroact to the date of the original judgment. At any rate, this only shows the absurdity of allowing appeal when the reason of the majority is that the decision of the trial court could no longer be modified because it had become final. This brings me to my second point. Second. Even assuming that appeal was the appropriate remedy, because it was a question of law that petitioner wanted to raise, the appeal should have been to this Court, not the Court of Appeals, and it should have been by petition for review on certiorari, not by mere notice of appeal. Art. VIII, 5(2)(e) of the Constitution provides that the Supreme Court shall have appellate jurisdiction over "all cases in which only an error or question of law is involved." This jurisdiction of the Supreme Court is exclusive by reason of 17, par. 4(4) of the Judiciary Act of 1948, which provides: SEC. 17. Jurisdiction of the Supreme Court. - . . . . The Supreme Court shall further have exclusive jurisdiction to review, revised, reverse, modify or affirm oncertiorari as the law or rules of court may provide, final judgments and decrees of inferior courts as herein provided, in . (4) All other cases in which only errors or questions of law are involved: Provided, however, That if, in addition to constitutional, tax or jurisdictional questions, the cases mentioned in the three next preceding paragraphs also involve questions of fact or mixed questions of fact and law, the aggrieved party shall appeal to the Court of Appeals; and the final judgment or decision of the latter may be reviewed, revised, reversed, modified or affirmed by the Supreme Court on writ of certiorari; . . . . (Emphasis added) Art. VIII, 5(2)(e) of the Constitution provides that the appeal shall be "by certiorari as the law or the rules of court may provide." Accordingly, Rule 122, 3(d) states that "all other appeals to the Supreme Court [in criminal cases other than those involving the imposition of reclusion perpetua or life imprisonment or death] shall be by a petition for review on certiorari under Rule 45." As petitioner simply filed a mere notice of appeal with the trial court, his appeal was correctly dismissed by the Court of Appeals. The majority contends that the Court of Appeals has appellate jurisdiction over cases in which the only question is a question of law that may be brought by mere notice of appeal filed with the trial court because of Rule 42, 2 and Rule 44, 15 of the 1997 Rules of Civil Procedure, which are made applicable to criminal cases by Rule 124, 184 of the Rules of Criminal Procedure. These Rules state: Rule 42, 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the

matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. . . . (Emphasis added) Rule 44, 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (Emphasis added) Mixed questions of fact and law may be raised in the Court of Appeals but not pure questions of law. This is clear from 17, par. 4(4) of the Judiciary Act of 1948 as quoted above. The exclusive jurisdiction of this Court over appeals in which only errors or questions of law are involved is affirmed in B.P. Blg. 129, 9 defining the jurisdiction of the Court of Appeals. This provision reads in part: SEC. 9. Jurisdiction. The Court of Appeals shall exercise: .... (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under PD No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. . . . (Emphasis added) The phrase "errors of fact or law or both" found in Rule 42, 2 and the phrase "any question of law or fact" in Rule 44, 15 must, therefore, be understood to mean "question of fact or mixed questions of fact and law" when referring to cases falling within the appellate jurisdiction of the Court of Appeals. The reason for this is simple. Rule 42, 2 and Rule 44, 15 are procedural rules, and it is conventional learning that procedural rules cannot amend or change substantive laws, such as the Constitution, the Judiciary Act of 1948 (R.A. No. 296), and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). As petitioner's appeal did not involve either a question of fact or a mixed question of fact and law, but solely a question of law, resort to the Court of Appeals by mere notice of appeal was erroneous, and therefore the appeal was correctly dismissed. Under no circumstance can the appeal be taken to the Court of Appeals without violating the Judiciary Act of 1948 and B.P. Blg. 129. Third. Petitioner's remedy was to file a petition for certiorari under Rule 65, 1 for, as already shown, the question raised is not an error of law but an alleged error of jurisdiction. Such petition should be filed in the Court of Appeals pursuant to B.P. Blg. 129, 9 by means of special civil

action of certiorari. Such petition should have been brought within 60 days from notice to petitioner of the ruling of the trial court, which is now long over.1wphi1.nt Nonetheless, the majority argues that this Court should relax the rules and decide directly the question raised by petitioner in the Court of Appeals, namely, whether the trial court could correct the penalty imposed on petitioner after its decision had become final. It is contended that this is necessary because a constitutional right of petitioner has been violated, i.e., the right of petitioner not to be placed in double jeopardy. Rules governing jurisdiction and the procedure for appeals as discussed above are not mere technicalities. They are part and parcel of the system of doing justice. It is justice according to law which we administer. As the majority notes, Rule 115, 1(i) gives every accused the right to appeal from a judgment of conviction. The same Rule provides, however, that the exercise of the right to appeal must be "in the manner prescribed by law." Nor is it tenable to invoke "demands of substantial justice" in this case as ground for setting aside the rules. Justice is due the State and the complainant in the criminal case as much as it is due petitioner. Again and again, the majority harps on the fact that the decision of the trial court had already become final and therefore it could no longer be modified even if that was to correct a plain error in computing the penalty. We are told that petitioner has the right not to be placed in double jeopardy of punishment for the same offense. This is not however the issue before this Court. The issue here is whether the Court of Appeals erred in dismissing petitioner's appeal (1) because appeals in cases in which the only error assigned is a question of law are exclusively cognizable by this Court and petitioner should have filed a petition for review on certiorari, not a mere notice of appeal given to the trial court and (2) because petitioner's remedy was really a special civil action of certiorari under Rule 65. It is I think misplaced sentimentality to argue on the constitutional right of petitioner when he had his remedies to seek vindication of this right but lost them by default by failing to avail himself of those remedies in the law. What about the right of the State and of complainant to have the correct penalty imposed on petitioner who does not question his conviction? After all, the mistake in the imposition of the penalty was that of the trial court, not that of the State and the complainant. The demands of justice would seem to indicate that petitioner be not allowed to invoke the finality of the erroneous sentence in order to escape his just deserts. After all, what the trial court did in this case was to correct an error it had made in fixing the maximum term of the sentence on petitioner. Petitioner, who does not question his liability for bigamy, can claim no vested right in the erroneous sentence. To summarize them, petitioner had remedies available to him for the correction of an error allegedly committed by the trial court. But he lost those remedies by default. We cannot set aside the rules just so he will be able to raise the questions which he sought to raise in the Court of Appeals. We must abide by our rules. This is the essence of the Rule of Law. I vote therefore to affirm the decision of the Court of Appeals.

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