Republic of the Philippines

COURT OF APPEALS
Manila

TWELFTH DIVISION

VIRGILIO DELA CRUZ,

CA-G.R. SP No. 112787

Petitioner,

-versus-

HON. WILFREDO T. NIEVES, ET AL.,

Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x

MOTION FOR RECONSIDERATION

(I)t is therefore imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going thru a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or
that no probable cause exists to form a sufficient belief as to the guilt of the
accused. (Jovito Salonga vs. Hon. Ernani Cruz Pano, et al., 134 SCRA
438).

Petitioner, VIRGILIO DELA CRUZ, through counsel, and by way of Motion for
Reconsideration of the Honorable Courts Decision dated July 09, 2013, respectfully
states:

1.

Petitioner received a copy of the Honorable Courts Decision dated July

09, 2013 on July 19, 2013 and therefore has fifteen (15) days from said date, or until
August 03, 2013, to file a motion for reconsideration. August 03, 2013 being a Saturday,
Petitioners motion for reconsideration is timely filed today, August 05, 2013 (Monday).
2.

In seeking a reconsideration of the Decision dated July 09, 2013,

Petitioner respectfully asks the Honorable Court to consider that, although as a general
rule, the accused cannot seek any judicial relief if he does not submit his person to the
jurisdiction of the Court, the Supreme Court has declared in the case of Miranda vs.
Tuliao (486 SCRA 383), that an accused who is at large with a pending warrant of arrest
can legally seek affirmative relief from the Court through a petition for certiorari and
prohibition. In the said case, the Supreme Court categorically stresses the following
very profound and significant pronouncement: In fine, as much as it is incongruous to
grant bail to one who is free, it is likewise incongruous to require one to surrender his
freedom before asserting it. Human rights enjoy a higher preference in the hierarchy of
rights than property rights, demanding that due process in the deprivation of liberty
must come before its taking and not after.
3.

Respondent Judge acted whimsically and capriciously when he issued a

warrant of arrest despite the absence of probable cause. With all due respect, the
Honorable Courts Decision dated July 09, 2013 has failed to adequately address the
pivotal and threshold issue of this case: Whether or not the Respondent Judge
committed grave abuse of discretion amounting to excess of jurisdiction in finding the
existence of probable cause for the issuance of a warrant of arrest against Petitioner.

4.

In sustaining the assailed Orders dated February 24, 2009 and December

10, 2009, the Honorable Court has made the following ratiocination:
A perusal of the assailed Order dated February 24, 2009 indicated that
respondent judge personally evaluated the Information and appended
documents such as the Resolution of the prosecutor, Memorandum of
Preliminary Investigation, Sworn statements of Marilyn B. Jimenez, Estrella B.
Jimenez and Medico-Legal Report. Also the bare allegation of petitioner that
respondent judge merely relied on the findings of the prosecutor can not
overcome the presumption of regularity in the performance of respondents
judges official functions.

5.

The foregoing finding of the Honorable clearly shows that Respondent

Judge gravely abused his discretion in finding probable cause solely on the basis of the
complainants patently incredible and unreliable evidence and utterly disregarded
Petitioners defense and witnesses.
6.

Clearly, therefore, Respondent Judge evaded a positive duty bestowed upon him

when he failed to examine assiduously all the pieces of evidence and disregarded
Petitioners evidence on the shallow supposition that the Petitioners arguments were
purely evidentiary in nature and needs to be threshed out in full blown trial. Had he
independently evaluated and assessed the merits of the case, as he is mandated to do,
then he would have undoubtedly found that the Provincial Prosecutors Alfredo
Geronimos finding of probable cause - when he arbitrarily and whimsically reversed
the findings of Investigating and Recommending Prosecutors - was devoid of factual
basis.

7.

In determining the existence of probable cause for the issuance of a warrant of

arrest, the Supreme Court declared in the case of Teresita Tanghal Okabe vs. Hon.
Pedro De Leon Gutierrez (

) that The judge should consider not only the report of

the investigating prosecutor but also the affidavit/affidavits and the documentary
evidence of the parties, the counter affidavit of the accused and his witness, as
well as the transcript of stenographic notes taken during the preliminary investigation, if
any, submitted to the court by the investigating prosecutor upon the filing of the
information.
8.

In the interest of a more enlightened and substantial justice, Petitioner hereby

reiterates below the evidence of parties and begs the indulgence and patience of the
Honorable Court to painstakingly examine the evidence:
9.

Consequently, it is unfair and unjust to require Petitioner to go through the

inconvenience, mental agony and torture of a trial on the merits of a non-bailable

offense,and to incur expenses incidental thereto, when the facts on which the
Respondent Judge predicated its finding clearly negate the existence of

probable

cause

PRAYER
WHEREFORE, in view of the foregoing and in the interest of a more enlightened
and substantial justice, it is respectfully prayed that the Honorable Courts Decision

dated July 09, 2013 be RECONSIDERED AND SET ASIDE, and that judgment instead
be rendered --

1.

Annulling and setting aside Respondent Judges Orders dated February

24, 2009 and December 10, 2009 (Annexes A, A-1 and B to the Petition);

2.

Dismissing Criminal Case No. 482-M-2009 for want of probable

cause

Other just and equitable reliefs are similarly prayed for.

Makati City for Manila, August 05, 2013

M.M. LAZARO & ASSOCIATES

Counseling for Petitioner
19/F, Chatham Bldg.
Valero cor. Rufino Sts.
Salcedo Village, Makati City 1227

By:
HECTOR P. CORPUS

PTR No. 3673262 / 01.04.13 / Makati City

IBP No. 922673/ 01.08.13 / Ilocos Sur
Attorneys Roll No. 26252
MCLE No. IV 0016006 / 04.16.13

VERIFICATION

I, HECTOR P. CORPUS, of legal age, after having been duly sworn in accordance
with law, hereby depose and state:

1.
I am a Partner in M.M. Lazaro & Associates, counsel for Petitioner in the
present case.
2.
I, together with Atty. Demetrio C. Custodio, Jr., another Partner in the same
Law Firm, prepared the foregoing Motion for Reconsideration, the contents of which I
have read and understood, and know to be true based on authentic records of the case
in my possession.

HECTOR P. CORPUS

SUBSCRIBED AND SWORN TO before me this 23rd day of August, 2004, affiant
exhibiting to me her Non-Professional Drivers License No. N02-95-277646 to expire on
September 24, 2006.

NOTARY PUBLIC
Doc. No. __
Page No. __
Book No. __
Series of 2004.

Copy Furnished:

By registered mail to
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street
Legaspi Village, Makai City

The PRESIDING JUDGE

Regional Trial Court-BR. 84
Malolos City, Bulacan 3000

Pros. FREDERICK F. MALAPIT

Trial Prosecutor
Office of the Provincial Prosecutor
Malolos City, Bulacan 3000

Atty. BIENVENIDO N. QUINONES

Counsel for private respondent
161-B, Shaw Bldvd,.
Mandaluyong City, 1550

Explanation on Manner of Service

Service of the foregoing Motion for Reconsideration was done by registered mail
due to the limited number of messengers in undersigned counsels Law Firm to effect
personal service thereof.

HECTOR P. CORPUS

REPUBLIC OF THE PHILIPPINES )

CITY OF MAKATI

) S. S.

x-----------------------------------------------------x
AFFIDAVIT OF SERVICE
(Revised as of September 01, 1995)
By registered mail to:
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street
Legaspi Village, Makai City

The PRESIDING JUDGE

Regional Trial Court-BR. 84
Malolos City, Bulacan 3000

Pros. FREDERICK F. MALAPIT

Trial Prosecutor
Office of the Provincial Prosecutor
Malolos City, Bulacan 3000

Atty. BIENVENIDO N. QUINONES

Counsel for private respondent

161-B, Shaw Bldvd,.

Mandaluyong City, 1550

SUBSCRIBED AND SWORN to before me this 23rd day of August 2004, Makati
City, Philippines, affiant exhibiting to me his Professional Drivers License No. LTO-N0390-096629 to expire on October 13, 2005.

Doc. No. __;

Page No. __;
Book No. __;
Series of 2004.