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G.R. No.

183975

September 20, 2010

GREGORIO DIMARUCOT GARCIA, Petitioner vs.!EO!"E O# T$E !$I"I!!INES, Respondent. RESOLUTION %I""ARAMA, &R., J.: For resolution in this petition for review on certiorari under Rule 4 of the !""# Rules of $ivil Procedure% as a&ended% is the Resolution ! dated 'ul( )*% )++, of the $ourt of -ppeals .$-/ in $-01.R. $R No. *+422 den(in3 petitioner4s o&ni5us &otion to reconsider the -u3ust )"% )++# Resolution dis&issin3 his appeal% to e6pun3e the sa&e fro& the 7oo8 of Entries of 'ud3&ent% and to 3ive petitioner a period of thirt( .*+/ da(s within which to file the appellant4s 5rief. The antecedents9 Petitioner is the accused in $ri&inal $ase No. ",0:0", for Frustrated :urder in the Re3ional Trial $ourt .RT$/ of :alolos% 7ulacan% under the followin3 Infor&ation9 That on or a5out the !,th da( of -u3ust% !""#% in the &unicipalit( of :alolos% province of 7ulacan% Philippines% and within the ;urisdiction of this <onora5le $ourt% the a5ove0na&ed accused% ar&ed with an iron pipe and with intent to 8ill one -n3elito Rosini ( 1o% did then and there wilfull(% unlawfull( and feloniousl(% with treacher( and evident pre&editation% attac8% assault and hit with the said iron pipe the said -n3elito Rosini ( 1o% hittin3 hi& on his head% there5( inflictin3 upon hi& ph(sical in;uries% which ordinaril( would have caused the death of the said -n3elito Rosini ( 1o% thus perfor&in3 all acts of e6ecution which should have produced the cri&e of &urder as a conse=uence% 5ut nevertheless did not produce it 5( reason of causes independent of his will% that is% 5( the ti&el( and a5le &edical assistance rendered to the said -n3elito Rosini ( 1o which prevented his death. $ontrar( to law.) -fter trial% on Septe&5er !!% )++2% the RT$ pro&ul3ated its >ecision * convictin3 petitioner of frustrated ho&icide% and sentencin3 hi& as

follows9 ?<EREFORE% findin3 accused 1RE1ORIO a8a 1EOR1E >I:-RU$OT ( 1-R$I- lia5le of .sic/ the lesser offense of Frustrated <o&icide% this $ourt here5( sentences hi& to an indeter&inate penalt( of four .4/ (ears and two .)/ &onths and one .!/ da(% as &ini&u&% to ei3ht .,/ (ears and one .!/ da(% as &a6i&u&% of i&prison&ent. -ccused is further directed to pa( co&plainant -n3elito Rosini ( 1o% actual da&a3es 5ro8en down as follows9 the a&ount of Nineteen Thousand One <undred Ten Pesos and Si6t( Five $entavos .P!"%!!+.2 / for the hospitali@ationA&edical 5ills and the a&ount of Thirt( Si6 Thousand Pesos .P*2%+++.++/ as loss of inco&e. ?ith costs a3ainst the accused. SO OR>ERE>.4 Upon receivin3 the notice to file appellant4s 5rief% petitioner thru his counsel de parte re=uested and was 3ranted additional period of twent( .)+/ da(s within which to file said 5rief. This was followed 5( three .*/ successive &otions for e6tension which were all 3ranted 5( the $-.2 On -u3ust )"% )++#% the $- issued a Resolution dis&issin3 the appeal% as follows9 $onsiderin3 the 'R> verification report dated 'ul( )4% )++# that the accused0appellant failed to file his appellant4s 5rief within the re3le&entar( period which e6pired on 'une 2% )++#% his appeal is considered -7-N>ONE> and thus >IS:ISSE>% pursuant to Sec. ! .e/% Rule +% !""# Revised Rules of $ivil Procedure. SO OR>ERE>.# Petitioner filed a &otion for reconsideration% , his counsel ad&ittin3 that he was at fault in failin3 to file the appellant4s 5rief due to Bpersonal pro5le&s e&anatin3 fro& his Ccounsel4sD wife4s recent sur3ical operation.B It was thus pra(ed that the $- allow petitioner to file his appellant4s 5rief which counsel undertoo8 to su5&it within seven .#/ da(s or until Octo5er 4% )++#. 7( Resolution " dated Nove&5er )#% )++#% the $-% findin3 the alle3ations of petitioner

unpersuasive and considerin3 that the intended appellant4s 5rief was not at all filed on Octo5er 4% )++#% denied the &otion for reconsideration. -s per Entr( of 'ud3&ent% the Resolution of -u3ust )"% )++# 5eca&e final and e6ecutor( on 'anuar( 4% )++,. !+ On :a( ,% )++,% petitioner filed an O&ni5us :otion .!/ To Reconsider -u3ust )"% )++# Resolution% .)/ To E6pun3e The Sa&e Fro& 7oo8 Of Entries Of 'ud3&ent% and .*/ To 1ive -ccused0 -ppellant - Final Period Of Thirt( >a(s To File -ppellant4s 7rief. Petitioner reiterated that his failure to file the appeal 5rief was solel( the fault of his law(er who is reportedl( sufferin3 fro& personal pro5le&s and depression. <e also cited his advanced a3e .he will turn #2 on :a( *+% )++,/ and &edical condition .h(pertension with cardiovascular disease and pul&onar( e&ph(se&a/% attachin3 copies of his 5irth certificate% &edical certificate and certifications fro& the 5aran3a( and church &inister.!! In the assailed Resolution dated 'ul( )*% )++,% the $- denied the o&ni5us &otion holdin3 that petitioner is 5ound 5( the &ista8es and ne3li3ence of his counsel% such personal pro5le&s of a counsel e&anatin3 fro& his wife4s sur3ical operation are not considered &ista8e andAor ne3li3ence conte&plated under the law as to warrant reconsideration of the dis&issal of petitioner4s appeal for failure to file appellant4s 5rief. Thus% when appellant did not file a petition 5efore this $ourt to assail the validit( of the -u3ust )"% )++# and Nove&5er )#% )++# resolutions% the -u3ust )"% )++# resolution attained finalit( and entr( of ;ud3&ent thereof is in order.!) The petition has no &erit. Section ,% para3raph !% Rule !)4 of the Revised Rules of $ri&inal Procedure% as a&ended% provides9 SE$. ,. >is&issal of appeal for a5andon&ent or failure to prosecute. E The $ourt of -ppeals &a(% upon &otion of the appellee or &otu proprio and with notice to the appellant in either case% dis&iss the appeal if the appellant fails to file his 5rief within the ti&e prescri5ed 5( this Rule% e6cept where the appellant is represented 5( a counsel de oficio. 6666

It is clear under the fore3oin3 provision that a cri&inal case &a( 5e dis&issed 5( the $- &otu proprio and with notice to the appellant if the latter fails to file his 5rief within the prescri5ed ti&e. The phrase Bwith notice to the appellantB &eans that a notice &ust first 5e furnished the appellant to show cause wh( his appeal should not 5e dis&issed.!* In the case at 5ar% there is no showin3 that petitioner was served with a notice re=uirin3 hi& to show cause wh( his appeal should not 5e dis&issed for failure to file appellant4s 5rief. The purpose of such a notice is to 3ive an appellant the opportunit( to state the reasons% if an(% wh( the appeal should not 5e dis&issed 5ecause of such failure% in order that the appellate court &a( deter&ine whether or not the reasons% if 3iven% are satisfactor(. !4 Notwithstandin3 such a5sence of notice to the appellant% no 3rave a5use of discretion was co&&itted 5( the $- in considerin3 the appeal a5andoned with the failure of petitioner to file his appeal 5rief despite four .4/ e6tensions 3ranted to hi& and non0co&pliance to date. >is&issal of appeal 5( the appellate court sans notice to the accused for failure to prosecute 5( itself is not an indication of 3rave a5use. Thus% althou3h it does not appear that the appellate court has 3iven the appellant such notice 5efore dis&issin3 the appeal% if the appellant has filed a &otion for reconsideration of% or to set aside% the order dis&issin3 the appeal% in which he stated the reasons wh( he failed to file his 5rief on ti&e and the appellate court denied the &otion after considerin3 said reasons% the dis&issal was held proper. Li8ewise% where the appeal was dis&issed without prior notice% 5ut the appellant too8 no steps either 5( hi&self or throu3h counsel to have the appeal reinstated% such an attitude of indifference and inaction a&ounts to his a5andon&ent and renunciation of the ri3ht 3ranted to hi& 5( law to prosecute his appeal. ! <ere% the $ourt notes the repeated non0o5servance 5( petitioner and his counsel of the re3le&entar( periods for filin3 &otions and perfectin3 appeal. ?hile still at the trial sta3e% petitioner4s &otion to ad&it and de&urrer to evidence was denied as it was not seasona5l( filed .petitioner was 3ranted fifteen .! / da(s fro& -u3ust ,% )++! within which to file de&urrer to evidence 5ut filed his &otion to dis&iss onl( on Septe&5er 4% )++!/% in accordance with Section )*%

Rule !!" of the Revised Rules of $ri&inal Procedure% as a&ended.!2 7efore the $-% petitioner and his counsel filed no less than four .4/ &otions for e6tension to file 5rief% which was never filed nor attached in the &otion for reconsideration of the -u3ust )"% )++# Resolution dis&issin3 the appeal. The last e6tension 3iven e6pired on 'une 2% )++#% without an( 5rief su5&itted 5( petitioner or his counsel. -nd even when he filed the O&ni5us :otion on :a( ,% )++,% still no appellant4s 5rief was attached 5( petitioner. Neither did petitioner file an( petition 5efore this $ourt =uestionin3 the validit( of the -u3ust )"% )++# resolution and the Nove&5er )#% )++# denial of his &otion for reconsideration. The dis&issal of his appeal havin3 5eco&e final% it was indeed too late in the da( for petitioner to file the O&ni5us :otion on :a( ,% )++,% which was four .4/ &onths after the finalit( of the resolution dis&issin3 the appeal. <avin3 5een afforded the opportunit( to see8 reconsideration and settin3 aside of the &otu proprio dis&issal 5( the $- of his appeal for non0filin3 of the appeal 5rief% and with his su5se=uent inaction to have his appeal reinstated after the denial of his &otion for reconsideration% petitioner cannot i&pute error or 3rave a5use on the $- in upholdin3 the finalit( of its dis&issal order. Non0co&pliance with the re=uire&ent of notice or show cause order 5efore the &otu proprio dis&issal under Section ,% para3raph ! of Rule !)4 had there5( 5een cured.!# Under the circu&stances% the petitioner was properl( declared to have a5andoned his appeal for failin3 to dili3entl( prosecute the sa&e. Petitioner cannot si&pl( harp on the &ista8es and ne3li3ence of his law(er alle3edl( 5eset with personal pro5le&s and e&otional depression. The ne3li3ence and &ista8es of counsel are 5indin3 on the client.!, There are e6ceptions to this rule% such as when the rec8less or 3ross ne3li3ence of counsel deprives the client of due process of law% or when the application of the 3eneral rule results in the outri3ht deprivation of one4s propert( or li5ert( throu3h a technicalit(. <owever% in this case% we find no reason to e6e&pt petitioner fro& the 3eneral rule. !" The ad&itted ina5ilit( of his counsel to attend full( and a5l( to the prosecution of his appeal and other sorts of e6cuses should have pro&pted petitioner to 5e &ore vi3ilant in protectin3 his ri3hts and replace said counsel with a &ore co&petent law(er. Instead% petitioner continued to allow his counsel

to represent hi& on appeal and even up to this $ourt% apparentl( in the hope of &ovin3 this $ourt with a fervent plea for rela6ation of the rules for reason of petitioner4s a3e and &edical condition. Feril(% dili3ence is re=uired not onl( fro& law(ers 5ut also fro& their clients. )+ Ne3li3ence of counsel is not a defense for the failure to file the appellant4s 5rief within the re3le&entar( period. Thus% we e6plained in RedeGa v. $ourt of -ppeals9)! In see8in3 e6e&ption fro& the a5ove rule% petitioner clai&s that he will suffer deprivation of propert( without due process of law on account of the 3ross ne3li3ence of his previous counsel. To hi&% the ne3li3ence of his for&er counsel was so 3ross that it practicall( resulted to fraud 5ecause he was alle3edl( placed under the i&pression that the counsel had prepared and filed his appellant4s 5rief. <e thus pra(s the $ourt reverse the $- and re&and the &ain case to the court of ori3in for new trial. -d&ittedl(% this $ourt has rela6ed the rule on the 5indin3 effect of counsel4s ne3li3ence and allowed a liti3ant another chance to present his case .!/ where the rec8less or 3ross ne3li3ence of counsel deprives the client of due process of lawH .)/ when application of the rule will result in outri3ht deprivation of the client4s li5ert( or propert(H or .*/ where the interests of ;ustice so re=uire. None of these e6ceptions o5tains here. For a clai& of counsel4s 3ross ne3li3ence to prosper% nothin3 short of clear a5andon&ent of the client4s cause &ust 5e shown. <ere% petitioner4s counsel failed to file the appellant4s 5rief. ?hile this o&ission can plausi5l( =ualif( as si&ple ne3li3ence% it does not a&ount to 3ross ne3li3ence to ;ustif( the annul&ent of the proceedin3 5elow. .E&phasis supplied./
1avvphi1

The ri3ht to appeal is not a natural ri3ht and is not part of due process. It is &erel( a statutor( privile3e% and &a( 5e e6ercised onl( in accordance with the law. The part( who see8s to avail of the sa&e &ust co&pl( with the re=uire&ents of the Rules. Failin3 to do so% the ri3ht to appeal is lost.)) Strict co&pliance with the Rules of $ourt is indispensa5le for the orderl( and speed( disposition of ;ustice. The Rules &ust 5e

followed% otherwise% the( will 5eco&e &eanin3less and useless. )* ?<EREFORE% the petition is DENIED for lac8 of &erit. The Resolution dated 'ul( )*% )++, of the $ourt of -ppeals in $-01.R. $R No. *+422 is -FFIR:E>. SO OR>ERE>. MARTIN S. %I""ARAMA, &R.-ssociate 'ustice

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