REPUBLIC OF THE
PHILIPPINES
REGIONAL TRIAL COURT
Xxx CITY
BRANCH xxx
PEOPLE OF THE
PHILIPPINES,
Plaintiff,
Crim.
Case No. xxx
-
Versus -
For: Violation of
Xxx Sec. 3 (g), RA 3019
(Salary Grade 14)
Barangay Chairman
No. xxx, xxx St., xxx Village
Brgy. xxx, xxx City,
Accused.
x----------------------------------------x
URGENT MOTION
TO SUSPEND PROCEEDINGS BASED ON PREJUDICIAL QUESTION PURSUANT TO
SECTION 11, PARAGRAPH “B”, RULE 116, RULES OF CRIMINAL PROCEDURE.
THE
ACCUSED, by counsel, respectfully states:
1.
This case is set for ARRAIGNMENT on xxx at 1:30
PM.
2.
The accused will not be ready for arraignment due
to the existence of a PREJUDICIAL QUESTION discussed hereinbelow.
3.
The instant criminal case is based PURELY on the:
(a)
AUDIT
OBSERVATION MEMORANDUM, dated xxx (AOM No. xxx) issued and signed by xxx,
Audit Team Leader, and xxx, Supervising Auditor/Office in Charge, a copy of
which is attached as ANNEX “1” hereof.
(b)
NOTICE OF
DISALLOWANCE, dated xxx, issued by the
COMMISSION OF AUDIT of xxx City (ND No. xxx) likewise issued and signed by
xxx, Audit Team Leader, and xxx, Supervising Auditor/Office in Charge, a copy
of which is attached as ANNEX “2” hereof.
4.
On xxx, the accused has seasonably APPEALED the
aforementioned AUDIT OBSERVATION
MEMORANDUM, dated xxx (AOM No. xxx) and NOTICE OF DISALLOWANCE, dated xxx with the National Capital Region
(NCR) of the Commission on Audit, pursuant to the COA Rules of
Procedure, as proved by the following documents:
(a)
CERTIFICATION,
dated xxx, issued by xxx, Assistant Regional Director – xxx of the
Commission on Audit, stating that the said appeal is still PENDING before the xxx
Region (xxx) office of the Commission on
Audit and that the same is docketed as xxx and entitled “xxx, ET. AL. vs. THE
SUPERVISING AUDITOR AND THE AUDIT TEAM LEADER, xxx CITY”, in re: NOTICE OF DISALLOWANCE No. xxx, dated xxx.
A copy of the said
CERTIFICATION is attached as Annex “3”
hereof;
(b)
OFFICIAL
RECEIPT No. xxx issued by the Commission on Audit on xxx proving the
payment by the accused of the APPEAL FEE of P305.02, a copy of which is attached
as Annex “4” hereof.
(c)
APPEAL
MEMORANDUM, dated xxx (notarial date), signed by the six (6) appellants xxx,
et. al., a copy of which (i.e., appeal
memorandum and its annexes) is attached as Annex
“5” hereof. The appellants in the appeal are:
X x x
X x x
X x x
X x x
X x x
X x x x
The pending COA NCR appeal
prays as follows:
“WHEREFORE, premises considered, it is respectfully prayed that:
1. The questioned NOTICE OF DISALLOWANCE SD NO. xxx, dated xxx
issued by the Appellees be SET ASIDE AND
NULLIFIED; and
2. The transaction subject
matter thereof be AFFIRMED AND DECLARED PROPER,
LEGITIMATE, LAWFUL AND VALID.
FURTHER, the Appellants pray for such and other reliefs as may be deemed just
and equitable in the premises.”
5.
A criminal case related to the instant case pending with this Branch (Branch xxx) is
pending with Branch xxx, which is docketed
as
“PEOPLE OF THE PHILIPPINES vs. xxx, et. al., docketed as Crim. Case No. xxx for violation of Sec. 3 (e), RA 3019.
5.1.
During the hearing on xxx, the Presiding Judge
of Branch xxx SUSPENDED THE
ARRAIGNMENT of the accused therein. She gave the accused therein ten days
to file their formal MOTION TO SUSPEND
PROCEEDINGS BASED ON PREJUDICIAL QUESTION, per Sec. 11, par. “B”, Rule 116 of
the Rules of Criminal Procedure.
6.
During the preliminary
investigation of the underlying cases before the Office of the OMBUDSMAN, the investigating Ombudsman REJECTED the defense
of the herein accused that the cases pending before the said Office should be
SUSPENDED BASED ON PREJUDICIAL QUESTION. Hence, two separate criminal Informations
were subsequently filed by the said Office with Branch xxx [for violation of Sec. 3, Par. “E”, RA 3019] and with Branch xxx [for violation of Sec. 3, Par. “G”, RA 3019]).
7.
Under existing jurisprudence, it is not a mandatory
or a mechanical rule that only a pending and prior CIVIL CASE is always treated
as a PREJUDICIAL QUESTION at all times or that the prejudicial question must
always be a pending and prior civil case only at all times.
7.1.
The following Supreme Court decisions allowed
the SUSPENSION of a criminal case in relation to a pending prior quasi-judicial case or a pending prior administrative
case:
(a)
OMICTIN
vs. CA, et. al., GR 148004, January 22, 2007. - In this case, the pending criminal case was one for ESTAFA while
the pending and earlier PREJUDICIAL QUESTION was a quasi-judicial case pending with the SECURITIES AND EXCHANGE COMMISSION involving intra-corporate issues.
It is similar to the legal status of the Commission on Audit insofar as the COA’s quasi-judicial power is concerned, e.g., its power to rule on appeals involving local
audit reports and local notices of disallowances, as in the case of the pending appeal of the herein
accused had timely filed with the COA National Capital Regional Office, supra.
(b)
QUIAMBAO
vs. HON. OSORIO, et. al., GR L -48157, March 16, 1988. - In this case the pending case was a civil case for ejectment and the
prejudicial question was a pending and prior administrative case being adjudicated by the Land Registration Authority (LRA).
(c)
FORTICH-CELDRAN,
et. al. vs. CELDRAN, et. al., 19 SCRA 502, cited in the aforecited case QUIAMBAO vs. HON. OSORIO, et. al., supra. – In this case the pending criminal case was for falsification and
the prejudicial question was a civil
case involving the genuineness of the subject document.
In the said case, the Supreme Court held that the administrative case for disbarment against the concerned lawyers
was a prejudicial question vis-à-vis the pending civil case involving the genuineness of the subject document.
The Supreme Court also held that the civil
case in turn was a prejudicial question vis-a-vis the pending criminal case for falsification.
The Supreme Court thus suspended
the criminal case to await its final ruling on the administrative case for disbarment because its final ruling on the administrative case for disbarment would
establish the guilt or innocence of the concerned lawyers with respect to the civil case involving the issue of genuineness of the subject documents.
The
civil case would in turn determine
the guilt or innocence of the accused in the pending criminal case.
WHEREFORE, premises considered, it is respectfully prayed that the proceedings
in the instant criminal case be SUSPENDED based on PREJUDICIAL QUESTION (i.e., the
pending prior quasi-judicial case involving
the unresolved/pending APPEAL OF THE ACCUSED BEFORE THE COMMISSION ON AUDIT, xxx
REGIONAL OFFICE, supra) pursuant to Section 11, Paragraph “B”, Rule 116, of the
Rules of Criminal Procedure, the same to
remain SUSPENDED until after the FINAL RESOLUTION of the pending prior PREJUDICIAL
QUESTION as discussed in the main body of this motion.
FURTHER, the accused
respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.
Xxx City, xxx.
LASERNA
CUEVA-MERCADER
LAW OFFICES
Counsel for Accused
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel/Fax: 8725443 & 8462539
X
x x x
http://lcmlaw1.blogspot.com
http://facebook.com/lcmlawlaspinascity
MANUEL LASERNA JR.
X x x
NOTICE OF HEARING
Branch Clerk of
Court
RTC xxx
Office of the City
Prosecutor
Hall of Justice
Xxx City
Prosecution and
Monitoring Bureau
Office of the
Ombudsman
3rd Flr., Ombudsman Annex Bldg.
Agham Rd., Diliman, Quezon City
Mabuhay:
We shall
present the foregoing motion to the Court on xxx, at 1:30 PM, a previously scheduled hearing (Arraignment) for the
convenience of the parties. The adverse parties are PERSONALLY SERVED copies of
this pleading. Thank you.
Manuel J. Laserna Jr.
Copy Furnished:
Office of the City
Prosecutor.
Hall of Justice
X x x City
(Personal Delivery)
Prosecution and
Monitoring Bureau
Office of the Ombudsman
3rd Flr., Ombudsman Annex Bldg.
Agham Rd., Diliman, Quezon City
(Personal Delivery)
