1.Preliminary Investigation.
a. Definition of Preliminary Investigation
- Preliminary investigation is an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof, and should be held for
trial.
a.1 Discuss Maza v. Turla, G.R. No. 187094
Trial Court judges must determine the existence or non-existence of
probable cause based on the personal evaluation of the prosecutor’s
report and its supporting documents. They may:
1. Dismiss the case if there is no probable cause
2. Issue an arrest warrant
3. Require the prosecutor to submit additional evidence.
There is no option to remand the case to the prosecutor for a
“complete” PI.
Petitioners Maza, Ocampo, Casifio, Mariano are former members of
the House of the Representatives were among those who were
allegedly responsible for the death of Bayudang, Peralta, Felipe.
Inspector Palomo recommended that a PI be conducted and an
Information for each count.
The panel of prosecutors found probable cause for murder in the
killing and recommended that the corresponding Informations be
filed against the suspects.
Judge Turla issued an Order on the Palayan cases. (RTC Palayan) and
held that the proper procedure in the conduct of PI was not followed.
Petitioners then filed a Petition for Certiorari with Prayer for
Issuance of a Temporary Restraining Order against Judge Turla and
the Prosecutors and prayed that the Orders of Turla be annulled and
set aside and that the murder cases against them be dismissed for
failure to show probable cause, alleging that she acted with grave
abuse of discretion.
SUPREME COURT: Rule 112, Sec 5. Does not allow the option to
remand the case back to the prosecutors. Only that the trial judge
may (1) dismiss the case, (2) issue a warrant of arrest, (3) order the
prosecutor to present additional evidence
Preliminary Investigation by the Prosecutor – An executive function
for the purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and
the accused is probably guilty and should be held for trial.
Preliminary Investigation by the Judge – A judicial function the
purpose of which is to determine if there is probable cause to issue a
warrant of arrest based on the personal evaluation of the
prosecutor’s resolution and the supporting evidence.
b. Who conducts preliminary investigation?
- It is an executive, not a judicial function.
- Preliminary investigation is a function that belongs to the public
prosecutor. It is an executive function, although the prosecutor, in the
discharge of such function, is a quasi-judicial authority tasked to
determine whether or not a criminal case must be filed in court.
Officers authorized to conduct preliminary investigation:
(a) Provincial or city prosecutors and their assistants:
(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law (COMELEC, PCGG,
Ombudsman)
Their authority to conduct preliminary investigation shall include all
crimes cognizable by the proper court in their respective territorial
jurisdictions
c. When is it necessary?
- Preliminary investigation is required for offenses punishable by at
least 4 years, 2 months, and 1 day, unless the accused was lawfully
arrested without a warrant, in which case, an inquest must have been
conducted
d. How is it instituted?
- For offenses where a PI is required pursuant to Sec. 1, Rule 112, by
filing the complaint with the proper officer for the purpose of
conducting the required PI.
- Once a crime has come to the attention of the police, a preliminary
investigation is initiated.
The object is to find out who can be suspected of the crime and
whether or not there is sufficient evidence to initiate an action. The
prosecutor leads the preliminary investigation from the point when a
certain individual can be reasonably suspected of having committed
the offence. In the case of less serious offences, the police conduct the
preliminary investigations from beginning to end.
As the person in charge of leading the investigation, the prosecutor is
responsible for ensuring that the crime is investigated in the best
way possible. The investigations are conducted by the police on the
instructions of the prosecutor.
The prosecutor follows the investigations on a continuous basis and
constantly determines which investigation measures and decisions
are necessary. If the investigation concerns a serious and
complicated crime, the prosecutor will often take part directly in the
investigation in connection, for instance, with reconstructions of the
crime or with important interrogations.
Precisely how a preliminary investigation is conducted in detail
depends, of course, on the type of crime being investigated. Following
a crime of violence, the police may conduct a crime scene
investigation and question victims, witnesses and suspects.
The leader of the preliminary investigation may decide to introduce
coercive measures such as cordoning off the crime scene, searching
premises or confiscating evidence.
- Initial steps in preliminary investigation; filing of the
complaint for preliminary investigation
1. It is the filing of the complaint with the investigating prosecutor
that starts the preliminary investigation process. In actual
application, the complaint is normally initiated through an affidavit
of complaint.
This complaint is required to state the address of the respondent and
shall be accompanied by (a) the affidavits of the complainant, (b) the
affidavits of his witnesses and, (c) other supporting documents.
These affidavits and supporting documents are required in order to
establish probable cause. The number of copies to be filed shall be in
such number as there are respondents plus two (2) copies for the
official file (Sec. 3[a], Rule 112, Rules of Court).
Note that the complaint filed for the purpose of preliminary
investigation differs from the complaint filed for the purpose of
instituting a criminal prosecution. The latter refers to the complaint
defined in Sec. 3 of Rule 110 and which is in the name of the People of
the Philippines. It has also been held that the complaint referred to in
a preliminary investigation is not just the affidavit of the complainant
because his affidavit is treated as a component of the complaint (See
Santos-Concio v. Department of Justice, 543 SCRA 70).
2. The rule establishes a hierarchy with respect to the persons before
whom the affidavits may be subscribed and sworn to.
The affidavits that shall accompany the complaint shall be subscribed
and sworn to before any prosecutor and not necessarily before the
investigating prosecutor. It may also be subscribed before any
government official authorized to administer oaths. In their absence
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or in case they are unavailable, the affidavits may be subscribed and
sworn to before a notary public (Sec. 3[a], Rule 112, Rules of Court).
3. The prosecutor, official or notary public before whom the affidavits
were subscribed and sworn to does not perform a mere perfunctory
or mechanical duty. He is obligated to conduct a personal
examination of the affiants and corollarily, to certify that he
personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits. (Sec. 3[a], Rule
112, Rules of Court).
e. What is the Effect of failure to complete or terminate
preliminary investigation with a reasonable time?
Failure to complete or terminate preliminary investigation with a
reasonable time may cause the dismissal of the case. The long delay
in the termination of the PI would be violative of the constitutional
guarantee of speedy disposition of cases embodied in the Bill of
Rights.
Every accused has the rights to due process and to speedy
disposition of cases. Inordinate delay in the resolution and
termination of a preliminary investigation will result in the dismissal
of the case against the accused.
Delay, however, is not determined through mere mathematical
reckoning but through the examination of the facts and
circumstances surrounding each case. But the accused must invoke
the constitutional rights in a timely manner for failure to do so would
be considered as a waiver of such right. [Cagang v. Sandiganbayan,
G.R. No. 206438]
-Absence of preliminary investigation; effect on
jurisdiction of the court
The absence of preliminary investigation does not affect the court's
jurisdiction over the case nor does it impair the validity of the
information or otherwise, render it defective (Rodis v.
Sandiganbayan, 166 SCRA 618; People v. Deang, 338 SCRA 657;
Socrates v. Sandiganbayan, 253 SCRA 773; People v. Buluran, 325 SCRA
476; Enriquez v. Sarmiento, Jr., 498 SCRA 6). If absence of a
preliminary investigation does not render the information invalid
nor affect the jurisdiction of the court over the case, then the denial
of a motion for reinvestigation cannot likewise invalidate the
information or oust the court of its jurisdiction over the case
(Budiongan, Jr. v. De la Cruz, Jr., 502 SCRA 626).
- Absence of preliminary investigation; not a ground for
motion to quash
The absence of a preliminary investigation is not a ground for a
motion to quash. Such ground is not provided for in Sec. 3 of Rule
117, the provision which enumerates the grounds for a motion to
quash a complaint or information (Budiongan, Jr. vs. De la Cruz, Jr.,
502 SCRA 626).
e.1 Discuss Tatad v. Sandiganbayan
Tatad seeks to annul and set aside the resolution of the Tanodbayan
and Sandiganbayan and prevent from continuing with the trial or any
other proceedings in People v. Tatad.
1974 – Antonio de los Reyes filed a formal report with the Legal
Panel of the Presidential Security Command (PSC) charging Tatad
with violations of the Anti-Graft and Corrupt Practices Act.
1979 – Tatad had a falling out with Marcos and filed his resignation
as Minister of Public Information and 2 months later Antonio filed
the formal complaint with the Tanodbayan of the same.
1980 – Tatad’s resignation was accepted by Marcos.
PSC – Found that Tatad violated the offense charged.
Issue: Whether the prosecution’s long delay in the filing of these
cases with the Sandiganbayan had deprived petitioner of his
constitutional right to due process and the right to a speedy
disposition of the cases against him.
SC: The complaint filed by Antonio in 1974 was made to “sleep” in the
office of the PSC until the end of 1979 when it became widely known
that Minister Tatad had a falling out with Marcos and the 1974 report
was resurrected in the form of a formal complaint filed with the
Tanodbayan. The Tanodbayan acted on the complaint 2 months after
Tatad’s resignation was accepted by Marcos.
It was found that the Tanodbayan had all the affidavits and counter-
affidavits necessary for the disposition since October 25, 1982. The
referral of the complaint by Tanodbayan to the PSC for investigation
and report was a revealing attempt to involve an office directly under
the President in the prosecutorial process, lending credence to the
suspicion that the prosecution was politically motivated.
The inordinate delay close to 3 years is violative of petitioner’s
constitutional rights. The facts and circumstances surrounding the
case did not warrant and justify the long delay for the Tanodbayad to
resolve the case. The delay in terminating the PI and filing the
information is violative of the constitutionally guaranteed right of the
petitioner to a speedy disposition of the case against him.
e.2 Discuss Cagang v. Sandiganbayan
Petitioner questions the Sandiganbayan’s denial to quash the
Informations and Order of Arrest against Cagang despite the Office of
the Ombudsman’s alleged inordinate delay in the termination of the
PI.
2003 – Ombudsman received an anonymous complaint alleging that
some employees and officials in the Vice Governor’s Office of
Sarangani committed graft and corruption by diverting public funds
and transferring them to dummy cooperatives.
2005 Information – charging Escobar, Rudes, Maglinte, Cagang,
accountable officials for Malversation of Public Funds.
2010 – Acquitted Escobar, Maglinte, and Cagang for insufficiency of
evidence.
2011 – Ombudsman Carpio-Morales received a resolution finding
probable cause to charge Mangalen and Magcalat of Malversation of
Public Funds and approved the recommendation on the Information
for Violation of R.A. 3019 and Malversation against Cagang, Camanay,
Zulueta, Macagcalat, and Mangalen. (For falsification of Disbursment
Voucher for 350k)
Cagang filed a Motion to Quash and Set Aside the Order of Arrest and
argued that there was an inordinate delay of 7 years which would
violate his constitutional rights.
2012 Sandiganbayan said – there was no inordinate delay
considering that 40 invididuals were involved in 81 different
transactions and Cagang did not invoke his right before the
Ombudsman and only did so after the Information was filed.
Filing of the Complaint – February 10, 2003
Information – November 17, 2011
The PI was concluded in 2005 and that it should not have taken the
Ombudsman 7 years to study the evidence needed to establish
probable cause.
SC: Right to speedy disposition of cases may be invoked against
Judicial, Quasi-judicial, and Administrative bodies while the Right to a
Speedy Trial may only be invoked in criminal prosecutions.
Such right is violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays, or when unjustified
postponements of the trial are asked for and secured, or when
without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried. The inquiry as to
whether or not an accused has been denied such right is not
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susceptible by precise qualification. The concept of speedy
disposition is a relative term.
The Tatad ruling and Barker Balancing test – that courts must
consider the following factors when determining the existence of
inordinate delay:
1. The length of delay
2. The reason for delay
3. The defendant’s assertion or non-assertion of the right
4. The prejudice to the defendant as a result of the delay
Determining the length of delay covers the entire period of
investigation even before trial and may be invoked as early as the
preliminary investigation or inquest.
The State argues that the fact-finding investigation should not be
considered a part of the PI because the former was only preparatory
in relation to the latter and should not be included in the
computation. --- SC: In determining whether inordinate delay
exists, a case is deemed to have commenced from the filing of the
formal complaint and the subsequent conduct of the PI.
The defense must also prove that it exerted meaningful efforts to
protect accused’s constitutional rights. To appreciate a violation of
the right to speedy disposition of cases, delay must not be
attributable to the defense. Unreasonable actions by the accused will
be taken against them.
However, if it has been alleged that there was delay beyond the given
time periods, the burden of proof shifts. The prosecution will now
have the burden to prove that there was no violation of the right to
speedy trial or speedy disposition of cases. Prosecution must prove
that it followed established procedure in prosecuting the case and
that any delay incurred was justified and that no prejudice was
suffered by the accused as a result of the delay.
Failure of the accused to move for dismissal prior to trial shall
constitute a waiver of the right to dismiss under this section.
If delay is alleged to have occurred DURING THE GIVEN PERIODS,
burden of proof is on the accused to prove that it was inordinate.
If delay is alleged to have occurred BEYOND THE GIVEN PERIODS,
burden of proof shifts on the prosecution.
Back to the case, THERE is no showing that this case was attended by
malice and no evidence that it was politically motivated, unlike in
Tatad. The dismissal of this case would undoubtedly be prejudicial to
the State. The State has as much right as the accused to have its day
in court and an opportunity to present its case. SC finds that there is
no violation of the accused’s right to speedy disposition considering
that there was a waiver of the delay of a complex case.
CAGANG’S PETITION IS DENIED.
f. Probable cause for the purpose of filing an information.
- The determination by the prosecutor of probable cause is for the
purpose of either filing an information in court or dismissing the
charges against the respondent.
g. What is an information?
- An information is an accusation in writing filed by the prosecutor,
need not be under oath, but must be signed and subscribed by him. A
complaint (private crimes) is an accusation in writing under oath,
filed by either an offended party, any peace officer, other public
officer charged with enforcement of the law violated.
h. What is an information sufficient?
- A complaint or information is sufficient if it states:
(a) The name of the accused;
(b) The designation of the offense given by the statute;
(c) The acts or omissions complained of as constituting the offense;
(d) The name of the offended party;
(e) The approximate date of the commission of the offense; and
(f) The place wherein the offense was committed.
When an offense is committed by more than one person, all of them
shall be included in the complaint or information
2. Arrest
a. Definition of an arrest.
- Arrest is the taking of a person into custody in order that he may be
bound to answer for the commission of an offense (
b. Warrantless arrests
-For a warrantless arrest of an accused caught in flagrante delicto
under paragraph (a) of the afore-quoted Rule, two requisites must
concur:
(1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and
(2) such overt act is done in the presence or within the
view of the arresting officer. In this case, the arrest of appellant was
effected under paragraph (a) or what is termed "in flagrante delicto.
c. Probable cause for insurance of a warrant of arrest.
- It is the judge alone who determines the probable cause for the
issuance of warrant of arrest. It is not for the provincial fiscal or
prosecutor to ascertain. A judge cannot be compelled to issue a
warrant of arrest if he or she believes honestly that there is no
probable cause for doing so
c.1 Discuss Mendoza v. People
While the determination of probable cause to charge a person of a
crime is the sole function of the prosecutor, the trial court may
dismiss the case if, upon personal assessment of the evidence, it finds
that the evidence does not establish probable cause.
RTC – dismissed the complaint against petitioner Alfredo Mendoza
for Qualified Theft and Estafa filed by Juno Cars.
Mendoza is a Used Car Supervisor for Juno. When they conducted a
partial audit, they found that 5 cars had been sold by Mendoza
without permission. Mendoza did not remit the payments totaling
886K and that only 18 out of 20 cars in his custody are accounted for
and that he pilfered a total amount of 1M and 46K to Juno’s prejudice.
Mendoza raised the issue that Juno failed to prove their ownership
over the 5 cars he sold. Prosecutor Delgado found probable cause and
recommended the filing of the Information against Mendoza for
Qualified Theft and Estafa.
While Mendoza’s MR is pending, 2 informations for QT and ESTAFA
were filed before the RTC.
RTC Judge Rizalina Capco-Umali dismissed the complaint and held
that the evidence adduced does not support a finding of probable
cause for the offenses of qualified theft and estafa.
RTC denied Juno’s motion for reconsideration.
Juno filed a petition for certiorari with the CA and argued that
determination of probable cause rightfully belongs to the prosecutor.
CA – reversed the trial court and reinstated the case and ruled that
RTC acted with grave abuse of discretion in supplanting the
prosecutor’s findings of probable cause with her own findings of
insufficiency of evidence.
ISSUE: Whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of
probable cause.
SC: There are 2 kinds of determination of probable cause: Executive
and Judicial.
Executive PI – function that pertains to the public prosecutor to
determine whether probable cause exists for the respondent (would-
be-accused) to be held for trial. [for the Information]
Judicial PI – made by a judge to ascertain whether there is probable
cause to issue a WARRANT OF ARREST against the accused
The judge may satisfy himself based on the evidence submitted and if
he finds that there is no probable cause, the judge cannot be forced to
issue arrest warrant.
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The judge does not act as an appellate court for the prosecutor and
has no capacity to review the prosecutor’s determination of probable
cause, rather, he makes a determination of probable cause
INDEPENDENT of the prosecutor’s finding.
While the information filed by Prosecutor Delgado was valid, Judge
Capco-Umali still had the discretion to make her own finding of
whether probable cause exists to order the arrest of the accused. She
found that Juno Cars failed to prove by competent evidence that the
vehicles alleged to have been pilfered were lawfully owned by them.
CA decision reversed. Case against Mendoza is dismissed.
3. Bail
a. Definition of Bail
Sec. 1, Rule 114 – Bail is the security given for the release of a person
in custody of the law, furnished by him or a bondsman, to guarantee
his appearance before any court as required under certain specified
conditions.
The purpose of bail is to guarantee the appearance of the accused at
the trial. The right to bail is a constitutional right. Sec. 13, Art. III,
1987 Constitution. The right springs from the presumption of
innocence.
b. Bail as a matter of right
The general rule is that all persons in custody shall be admitted to
bail as a matter of right. ALL criminal cases within MTC, MTCC, MCTC
are bailable because they do not have jurisdiction to try capital
offenses.
A Matter of Right in the following;
1. Before conviction by the MTC, etc
2. After conviction by the MTC, etc
3. Before conviction by the RTC of an offense not punishable
by death, reclusion perpetua, or life imprisonment
c. Bail as a matter of discretion
1. When the accused has been convicted in the RTC of an offense NOT
punishable by death, reclusion perpetua, or life imprisonment
2. Before conviction, in cases of offenses punishable by death,
reclusion perpetua, or life imprisonment when evidence of guilt is
strong
c.1 Discuss Ponce Enrile v. Sandiganbayan
June 5, 2014 – Ombudsman charged Enrile and others with plunder
on their alleged involvement in the misuse of appropriations under
PDAF.
Enrile – Omnibus Motion w prayer that he should be allowed to post
bail if probable cause was to be found against him.
Sandiganbayan – denied the motion for bail on the ground of its
prematurity considering that Enrile has not yet been placed under
the custody of law.
[BAIL IS FOR THE PURPOSE OF ENSURING THE ACCUSED’S
APPEARANCE AT TRIAL]
Warrant of Arrest was issued and he voluntarily surrendered. Motion
to Fix Bail was filed and argued that he should be allowed to post bail
because:
1. The Prosecution has not established that the evidence of
his guilt was strong
2. That even though he was charged with plunder (punishable
by reclusion perpetua to death), the penalty to him should
only be reclusion temporal because of his age and
mitigating circumstance of voluntary surrender
3. That he was not a flight risk and that his physical condition
must be seriously considered
His motion was denied.
Enrile raises the ff grounds:
1. That before judgment of the Sandiganbayan, he is bailable
as a matter of right since prosecution has failed to show
clearly and conclusively that evidence of his guilt is strong.
SC: The purpose of bail is to guarantee the appearance of the accused
at the trial.
Bail may be granted as a matter of discretion
Section 7, Rule 114 – Capital offenses or those punishable by
reclusion perpetua or life imprisonment are NOT bailable. – No
person charged with a. capital offense, etc, shall be admitted to bail
WHEN evidence of guilt is strong, regardless of the stage of the
criminal prosecution.
General Rule – any person, before being convicted, shall be bailable,
unless the offense is punishable by death, RP, or LI, AND evidence of
guilt is strong.
If evidence of guilt is not strong = Bail is a matter of right
Bail is discretionary when:
1. upon conviction by the RTC of an offense NOT punishable
by death, RP, LI
2. RTC has imposed a penalty of imprisonment EXCEEDING 6
years, provided that any of the circumstances enumerated
in Sec. 5, Rule 114 is present.
Admission to bail in offenses punished by death, RP, LI is subject to
Judicial Discretion. Bail cannot be allowed when its grant is a matter
of discretion on the part of the trial court unless there has been a
hearing with notice to the prosecution.
Enrile’s poor health justifies his Admission to Bail. The PH’s
responsibility of protecting and promoting the right of every person
to liberty and due process (Universal Declaration of Human Rights).
The PH is under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to
liberty, including the right to be admitted to bail.
Enrile’s reputation of having utter respect for the legal processes of
this country and his health condition are also taken into
consideration, he should be granted bail.
Granting provisional liberty to Enrile will enable him to have his
medical condition be properly addressed and better attended to by
competent physicians in the hospital of his choice which would ONLY
AID in his adequate preparation of his defense but WILL
GUARANTEE his appearance in court for the trial.
Petition is gramted. Sandiganbayan resolutions are set aside.
d. Definition of recognizance
- an obligation of record entered into usually by the responsible
members of the community before some court or magistrate duly
authorized to take it, with the condition to do some particular act, the
most usual act being to assure the appearance of the accused for trial
e. Increase, reduction, forfeiture, and cancellation of bail.
-After the accused is admitted to bail, the court may, upon good
cause, either increase or reduce its amount. When increased, the
accused may be committed to custody if he does not give bail in the
increased amount within a reasonable period. An accused held to
answer a criminal charge, who is released without bail upon filing of
the complaint or information, may, at any subsequent stage of the
proceedings whenever a strong showing of guilt appears to the court,
be required to give bail in the amount fixed, or in lieu thereof,
committed to custody
- When the presence of the accused is required by the court or these
Rules, his bondsmen shall be notified to produce him before the court
on a given date and time. If the accused fails to appear in person as
required, his bail shall be declared forfeited
- The bail may be cancelled upon surrender of the accused or proof of
his death. The bail shall be deemed automatically cancelled upon
acquittal of the accused, dismissal of the case, or execution of the
judgment of conviction. In all instances, the cancellation shall be
without prejudice to any liability on the bail
f. Bail not a waiver of right to question validity of arrest.
- An application for or admission to bail shall not bar the accused
from challenging the validity of his arrest or the legality of the
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warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea.
The court shall resolve the matter as early as practicable but not later
than the start of the trial of the case.
4. Arraignment and Plea
a. How is arraignment made?
- The arraignment shall be made in open court by the judge or clerk
by furnishing the accused with a copy of the complaint or
information, reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not guilty. The
prosecution may call at the trial witnesses other than those named in
the complaint or information.
b. What is plea bargaining?
- Plea bargaining in criminal cases is a process whereby the accused
and the prosecution work a mutually satisfactory disposition of the
case subject to court approval. It usually involves the defendant's
pleading guilty to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a lighter sentence
than that for the graver charge (Daan v. Sandiganbayan, G.R. Nos.
163972-77, March 28,2008).
c. Plea of guilty to a lesser offense
- An accused can enter a plea to a lesser offense if there is consent of
the other party and the prosecutor. If he did so without the consent
of the offended party and the prosecutor and he was convicted, his
subsequent conviction in the crime charged would not place him in
dhouble jeopardy. It has been held that the accused can still plead
guilty to a lesser offense after the prosecution has rested. It is further
required that the offense to which he pleads must be necessarily
included in the offense charged
- Requisites for a plea of guilty to a lesser offense 1. At the
arraignment, the accused may plead guilty to a lesser offense. The
court shall allow the plea provided the following requisites concur:
(a) The lesser offense is necessarily included in the offense charged;
and
(b) The plea must be with the consent of both the offended party and
the prosecutor (Sec. 2, Rule 116, Rules of Court). The consent of the
offended party will not be required if said party, despite due notice,
fails to appear during the arraignment (Sec. l[fj, Rule 116, Rules of
Court).
2. The acceptance of an offer to plead guilty to a lesser offense is not
demandable by the accused as matter of right but is a matter
addressed entirely to the sound discretion of the trial court (Daan v.
Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008 citing People v.
Villarama, 210 SCRA 246).
3. Sec. 2 of Rule 116 of the Rules of Court present the basic requisites
upon which plea bargaining may be made, i.e., that it should be with
the consent of the offended party and the prosecutor, and that the
plea of guilty should be to a lesser offense which is necessarily
included in the offense charged. The rules however, used the word
may in the second sentence of Sec. 2, denoting an exercise of
discretion upon the trial court on whether to allow the accused to
make such plea. Trial courts are exhorted to keep in mind that a plea
of guilty for a lighter offense than that actually charged is not
supposed to be allowed as a matter of bargaining or compromise for
the convenience of the accused (Daan v. Sandiganbayan [Fourth
Division], 550 SCRA 233, March 28, 2008).
4. An offense may be said to necessarily include another when some
of the essential elements or ingredients of the former as alleged in
the complaint or information constitute the latter — and vice versa,
an offense may be said to be necessarily included in another when
the essential ingredients of the former constitute or form part of
those constituting the latter (Daan v. Sandiganbayan [Fourth
Division], 550 SCRA 233, March 28, 2008 citing Pacho v.
Sandiganbayan, 238 SCRA 116).
d. Plea of guilty to a capital offense
- The court should accomplish three (3) things;
(a) It should conduct searching inquiry into the voluntariness and full
comprehension of the consequences of the plea;
(b) It should require the prosecution to prove the guilt of the accused
and the precise degree of culpability; and
(c) It should inquire whether or not the accused wishes to present
evidence on his behalf and allow him if he so desires
e. Effect of plea of guilty to a non-capital offense.
- Sec. 4. Plea of guilty to non-capital offense; reception of evidence,
discretionary.
When the accused pleads guilty to a non-capital offense, the
court may receive evidence from the parties to determine the penalty
to be imposed.
- What should the court do when the accused pleads guilty to a non-
capital offense?
> The court may receive evidence from the parties to determine the
penalty to be imposed
> Unlike in a plea of guilty to a capital offense, the reception of
evidence in this case is not mandatory.
> It is merely discretionary on the court
f. When is suspension of arraignment allowed?
- Upon motion by the proper party, the arraignment shall be
suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand
the charge against him and to plead intelligently thereto. In such case,
the court shall order his mental examination and, if necessary, his
confinement for such purpose.
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is
pending at either the Department of Justice, or the Office of the
President; provided , that the period of suspension shall not exceed
sixty (60) days counted from the filing of the petition with the
reviewing office
5. Quashal of Information
a. What are the grounds to quash an information?
-(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense
charged;
(c) That the court trying the case has no jurisdiction over the person
of the accused;
(d) That the officer who filed the information had no authority to do
so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
i. By the death of the convict, as to the personal
penalties; as to pecuniary penalties, liability therefor
is extinguished only when the death of the offender
occurs before final judgment.
ii. By service of the sentence;
iii. By amnesty, which completely extinguishes the
penalty and all its effects;
iv. iv. By absolute pardon;
v. v. By prescription of the crime;
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 vi. vi. By prescription of the penalty;
vii. vii. By the marriage of the offended woman in 1.
Seduction 2. abduction or 3. acts of lasciviousness
(Art. 344 RPC)
b. What is provisional dismissal?
1) - A case shall not be provisionally dismissed except with
the express consent of the accused and with notice to the
offended party.
2) The provisional dismissal of offenses punishable by
imprisonment not exceeding six (6) years or a fine of any
amount, or both, shall become permanent one
(1) year after issuance of the order without the case
having been revived.
3) With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall
become permanent two (2) years after issuance of the
order without the case having been revived.
4) The raison d‘etre for the requirement of the express
consent of the accused to a provisional dismissal of a
criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in
double jeopardy for the same offense or for an offense
necessarily included therein.
c. When does a provisional dismissal become a permanent
dismissal?
- The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance of the order
without the case having been revived
6. Pre-Trial
a. What are the matters to be considered during pre-trial?
- (a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits
the charge but interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial
of the criminal and civil aspects of the case
b. Pre-trial agreement.
-All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in section 1 of this Rule
shall be approved by the court
c. Effect of non-appearance at pre-trial
- If the counsel for the accused or the prosecutor does not appear at
the pre-trial conference and does not offer an acceptable excuse for
his lack of cooperation, the court may impose proper sanctions or
penalties
The rule is intended to discourage dilatory moves or strategies as
these would run counter to the purposes of pre-trial in criminal
cases, more specifically those intended to protect the right of the
accused to fair and speedy trial.
d. Pre-trial order.
- After the pre-trial conference, the court shall issue an order reciting
the actions taken, the facts stipulated, and evidence marked. Such
order shall bind the parties, limit the trial to matters not disposed of,
and control the course of the action during the trial, unless modified
by the court to prevent manifest injustice
7. Trial
a. What is the order of trial?
- Subject to the provisions of Sec. 2, Rule 31 (Separate trials), and
unless the court for special reasons otherwise directs, the trial
shall be limited to the issues stated in the pre-trial order and
shall proceed as follows:
1) The plaintiff shall adduce evidence in support of his
complaint;
2) The defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and third
party complaint;
3) The third party defendant, if any, shall adduce
evidence of his defense, counterclaim, cross-claim and
fourth-party complaint;
4) The fourth party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
5) The parties against whom any counterclaim or cross-
claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed
by the court;
6) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and
in the furtherance of justice, permits them to adduce
evidence upon their original case; and
7) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or third party defendants and so forth
having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their
evidence (Sec. 5).
b. What is trial in absentia?
- The Constitution permits trial In absentia of an accused after his
arraignment who unjustifiably fails to appear during the trial
notwithstanding due notice. The purpose of trial in absentia is to
speed up the disposition of criminal cases.
c. May an information be amended after arraignment or during
trial?
.- An information may be amended, in form or in substance, without
leave court, at any time before the accused enters his plea. After the
plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing
prejudice to the rights of the accused.
The proper procedure for the amendment of an Information is
governed by Sec. 14, Rule 110, of the Rules on Criminal Procedure —
SECTION 14. Amendment. — The information or complaint may be
amended, in substance or form, without leave of court at any time
before the accused pleads; and thereafter and during the trial as to all
matters of form, by leave and at the discretion of the court, when the
same can be done without prejudice to the rights of the accused . . . .
c.1 Discuss Gabionza v. Court of Appeals
Gabionza seeks a review of the CA dismissing his petition for
certiorari assailing the order of the RTC which allowed the
amendment of the Information.
An Information was filed against Gabionza accusing him of violating
the Social Security Law. 4 years after he was arraigned, the public
prosecutor filed a Motion for Leave of Court to Amend Information to
change the material dates from “January 1991 to May 1993” to
“January 1991 to May 1992”. RTC allowed the amendment.
CA upheld the amendment because it is only an Amendment of Form
and not Substance, as it will in no wise or manner impair whatever
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defense the accused could or might have interposed in the original
information.
Sec. 14, Rule 110 Amendment – The information or complaint may be
amended, in substance or form, WITHOUT leave of court at ANY
TIME BEFORE the accused pleads, and thereafter and during the trial
as to all matters of form, BY LEAVE, and at the discretion of the court,
when the same can be done WITHOUT PREJUDICE to the rights of the
accused.
Amendment to Form can be made at any time so long as:
1.It does not deprive the accused of the right to invoke prescription
2.it does not affect or alter the nature of the offense originally
charged
3.it does not involve a change in the basic theory of the prosecution
so as to require the accused to undergo any material change or
modification in his defense
4.it does not expose the accused to a charge which would call for a
higher penalty
5.it does not cause surprise nor deprive the accused of an
opportunity to meet the new averment.
The questioned amendment is only one of form and not of substance.
Only the date was changed. Neither time nor duration of the offense
charged is a material ingredient of the offense [Petitioner, President
of the Manila City Bus Corporation, a compulsorily-covered employer
under RA 1161 -> Willfully, Unlawfully failed, neglected, and refused
to to remit to the SSS, Medicare, and Employee Compensation]
The allowed amendment is not prejudicial to the accused.
d. Demurrer to evidence
1) A demurrer to evidence is actually a motion to dismiss that is filed
by the accused after the prosecution has rested its case.
After the prosecution rests its case, a demurrer to the evidence may
be filed by the accused on the ground of insufficiency of evidence.
The court may, on its own initiative, dismiss the action without
waiting for a demurrer from the accused also on the ground of
insufficiency of evidence but the court shall do so only after giving
the prosecution the opportunity to be heard.
2) A Demurrer to evidence is an objection by one of the parties in an
action to the effect that the evidence which his adversary produced is
insufficient in point of law to make out a case or sustain the issue.
Demurrer – defendant feels that plaintiff is not entitled to relief,
instead of presenting his evidence, the defendant
may move for dismissal on the ground that upon the facts and the
law, the plaintiff has shown no right to relief
-if granted, puts an end to the case
Effect:
1. If granted, the case shall be dismissed. However, if reversed on
appeal, the defendant loses his right to present
evidence
2. It is not correct for the appellate court reversing the order to
remand the case to the trial court. They should
instead render judgment on the basis of the evidence submitted by
the plaintiff
- After the prosecution rests its case, the court may dismiss
the action on the ground of insufficiency of evidence (1)
on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence
filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with
leave of court, the accused may adduce evidence in his
defense.
When the demurrer to evidence is filed without leave of
court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the
evidence for the prosecution.
The motion for leave of court to file demurrer to evidence
shall specifically state its grounds and shall be filed within
a non-extendible period of five (5) days after the
prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days
from its receipt.
If leave of court is granted, the accused shall file the
demurrer to evidence within a non-extendible period of
ten (10) days from notice. The prosecution may oppose
the demurrer to evidence within a similar period from its
receipt.
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment.
d.1 Discuss Macapagal-Arroyo v. People
The Court granted the petition for certiorari and set aside the
resolution of the Sandiganbayan AND GRANTED Arroyo and Aguas’
Demurrer to Evidence and dismissed the criminal case for
insufficiency of evidence and orders the immediate release from
detention of petitioners.
Ombudsman has moved for the reconsideration of the decision and
stated that the Court’s actions violated Rule 119, Sec. 23 which
provides that an order denying Demurrer shall not be reviewable by
Appeal by certiorari BEFORE judgment.
Arroyo points out that the State (thru Ombudsman) has failed to
prove the corpus delicti of plunder and that the Court correctly
required the identification of the main plunderer as well as the
personal benefit gained by the raider of the public treasury.
Sec. 23, Rule 119 Demurrer to Evidence – The order denying the
motion for leave of court to file demurrer to evidence shall NOT be
reviewable by appeal or by certiorari before judgment.
SC: Sandiganbayan as the trial court was guilty of grave abuse of
discretion when it capriciously denied the demurrers despite the
absence of competent and sufficient evidence to sustain the
indictment for plunder. The remedy for the denial is petition for
review on certiorari (Rule 65 – for grave abuse of discretion)
The State argues that the decision amounted to judicial legislation
when it required that the main plundered must be identified, citing
the plain meaning rule to highlight that the crime of plunder did not
require personal benefit on the part of the raider. Insists on the
definition that raids on the public treasury is the taking of public
money through fraudulent or unlawful means and such definition
does not require enjoyment or personal benefit on the part of the
plunderer.
SC: The requirements for the identification of main plunderer and for
personal benefit have been written in R.A. 7080 itself as well as
embedded in jurisprudence.
7080 – Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity,
business associates, subordinates, other persons, amasses,
accumulates, or acquires ill-gotten wealth through a combination or
series of overt criminal acts.
The law on plunder requires that a particular public officer must be
identified as the one who amassed, acquired, or accumulated the ill-
gotten wealth.
The rules of statutory construction indicated the intent of congress to
require personal benefit for the predicate acts of raids on the public
treasury. The Sandiganbayan erred in contending that the mere
accumulation and gathering constituted the forbidden act of raids on
the public treasury. Pursuant to the maxim of Noscitur a sociis, raids
on the public treasury requires the raider to use the property taken
impliedly for his personal benefit.
The general rule is that the grant of a demurrer to evidence operates
as an acquittal and is thus final and unappealable. A demurrer to
evidence is filed after the prosecution has rested its case, when it is
granted, it calls for an appropriation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond
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reasonable doubt, resulting in a dismissal of the case on the merits
and tantamount to an acquittal of the accused. Such dismissal by
grant of demurrer may not be appealed, for it would put the accused
in double jeopardy. (but the rule on DJ is not absolute, the case may
be reopened when it is shown that the trial court acted with grave
abuse of discretion. Decisions acted with GAOD amounts to a VOID
judgment)
Every acquittal becomes final immediately upon promulgation and
cannot be recalled for correction or amendment. With the acquittal
being final, granting the State’s motion for reconsideration would
constitute a violation of the constitutional prohibition against double
jeopardy. Only the defendant could seek a new trial after conviction,
even though the Government had no similar right.
e. Effect of Failure to seek leave of court prior to filing of
demurrer to evidence.
- When the demurrer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case
for judgment on the basis of the evidence for the prosecution
8. Judgment
a. Definition of Judgment
- Judgment means the adjudication by the court that the accused is
guilty or is not guilty of the offense charged, and the imposition of the
proper penalty and civil liability provided for by law on the accused
b. Contents of Judgment
If the judgment is of conviction, it shall state
- (1) the legal qualification of the offense constituted by the acts
committed by the accused and the aggravating or mitigating
circumstances which attended its commission;
(2) the participation of the accused in the offense, whether as
principal, accomplice, or accessory after the fact;
(3) the penalty imposed upon the accused; and
(4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a separate
civil action has been reserved or waived. In case the judgment is of
acquittal, it shall state whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment
shall determine if the act or omission from which the civil liability
might arise did not exist
b.1 Discuss People v. Ferrer
RTC of Lanao Del Sur finding appellant Jerry Ferrer guilty of the
crime of rape committed against Mary Grace Belonio.
That in October 1995 and continuously thereafter in Wao, Lanao del
Sur, Ferrer taking advantage of his moral ascendancy as stepfather of
11-year-old Mary Grace and having sexual intercourse with her
against her will when she is alone at home while her mother was out.
Ferrer’s counsel Atty. Macabanding filed an Urgent Motion for
Medical Treatment alleging that Ferrer was suffering from an
unknown sickness. Trial court granted the motion and ordered his
temporary release.
On the date of pre-trial, both Ferrer and his counsel failed to appear
in court despite due notice. Trial court then ordered the immediate
issuance of warrant to arrest appellant and allowed the prosecution
to present evidence in absentia.
Trial in absentia followed and prosecution witnesses Tugade, Mary
Grace, her mother, and Dr. Bajaria all presented their testimonies.
In 1995 when Mary Grace was 11, she experienced the first of a
series of sexual abuses from Ferrer. 3-4 times a week whenever her
mother was not around from October 1995 to December 1997. She
finally revealed it to her Aunt Tugade in 1997.
The Court rendered a 5-page decision and that based on the
evidence, the prosecution proved the guilt of appellant beyond
reasonable doubt.
Ferrer assails the decision as res ipsa loquitor violative of Sec. 14, Art.
VIII of the Constitution which requires that no decision shall be
rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
And its Statutory Expression Rule 120, Sec. 1.
Judgment, definition and form. – The adjudication by the court that
the accused is guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil liability, if any. It
must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly
and distinctly a statement of the facts and the law upon which it is
based.
This Court has struck down as void, decisions of lower courts and
even of the CA whose careless disregard of the constitutional behest
exposed their cavalier attitude not only to their magisterial
responsibilities but likewise to their avowed fealty to the
Constitution.
Jerry Ferrer was also not properly accorded the right to counsel
which must me more than just the presence of a lawyer in the
courtroom but one who commits himself to the cause for the defense
and acts accordingly. An accused does not cease to have rights just
because of his conviction.
SC -> remand the case to the trial court for continuation of the trial.
c. What are the rules on promulgation of judgement?
- The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered.
However,
 if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or
representative.
 When the judge is absent or outside the province or city,
the judgment may be promulgated by the clerk of court.
 If the accused is confined or detained in another province
or city, the judgment may be promulgated by the executive
judge of the Regional Trial Court having jurisdiction over
the place of confinement or detention upon request of the
court which rendered the judgment
9. New Trial, Reconsideration, and Appeal
a. May judgement of acquittal be the subject of a motion for
reconsideration or an appeal on the part of the prosecution?
- Yes.
-
a.1 Discuss Galman v. Sandiganbayan
August 21, 1983 – Ninoy Aquino was shot etc etc.
The President was constrained to create a Fact Finding Board to
investigate the treacherous assassination of the former senator. The
Board had 125 hearing days.
The Minority report was sent to the President 1 day ahead of the
Majority Report. Both the reports rejected the military version of
what happened and found that only the soldiers in the staircase with
Aquino could have possibly shot him and not Galman.
Minority Report – only 7 out of the 26 accused should be charged. 6
were on the service stairs with Aquino and General Luther Custodio
who was mainly responsible for the criminal plot.
Majority Report – all 26 should be charged for the double murder of
Rolando Galman and Ninoy Aquino
The task of the board was to determine the facts and circumstances
surrounding the death of Aquino. Marcos sent the Minority report to
the Tanodbayad for final resolution instead of the Majority report.
Military version: Rolando Galman was the one who shot Aquino.
Galman being a communist-hired shooter.
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Marcos, however, publicly stated that what happened was the
military version.
The result for trial of the Aquino-Galman murder case was pre-
determined by Marcos, as evidenced by the statements of Justice
Manuel Herrera when the case was reopened.
Marcos summoned to the Malacanang Justice Fernandez – the
Tanodbayan, Sandiganbayan Justice Pamaran. Present also at the
meeting were Justice Lazaro and Imelda Marcos.
The SECRET CONFERENCE held on January 10, 1982 – Marcos
personally ordered Pamaran to handle the case and dispose of it as
soon as possible.
The period of appeal shall be interrupted by a timely motion for new
trial or reconsideration. No motion for extension of time to file a
motion for new trial or reconsideration shall be allowed.
d. Notice of appeal.
- Sec. 5. Notice of appeal.
The notice of appeal shall indicate the parties to the appeal, specify
the judgment or final order or part thereof appealed from, specify the
court to which the appeal is being taken, and state the material dates
showing the timeliness of the appeal.
Sec. 6. Record on appeal; form and contents thereof.

Marcos’ original intention was to have the case dismissed
immediately and not go to trial, but after their meeting, the plan was
to have the trial and subsequently acquit all the accused so that they
can the protection that double jeopardy provides and to protect all
those involved even after Marcos is not president anymore.
Justice Manuel Herrera did a tell-all of the secret conference. Marcos
had stage-managed in and from Malacanang the scripted and pre-
determined manner on how the Justices would handle the Aquino-
Galman case.
Pamaran penned the decision on the Aquino-Galman case as ordered
by Marcos. His defense was that it was a coincidence and that cases
are raffled to them, but all of the events that transpired after the Jan.
10 secret conference proved otherwise. There are 3 justices in the 1 st
division of Sandiganbayan and it is suspicious that it was still
“raffled” to Pamaran and not the other 2 justices.
During the course of the trial, several supposed witnesses for the
Prosecution would disappear, with others getting kidnapped, and the
Japanese witness being prevented from giving testimony.
The full names of all the parties to the proceedings shall be stated in
the caption of the record on appeal and it shall include the judgment
or final order from which the appeal is taken and, in chronological
order, copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed judgment or final
order for the proper understanding of the issue involved, together
with such data as will show that the appeal was perfected on time. If
an issue of fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and documentary,
taken upon the issue involved. The reference shall specify the
documentary evidence by the exhibit numbers or letters by which it
was identified when admitted or offered at the hearing, and the
testimonial evidence by the names of the corresponding witnesses. If
the whole testimonial and documentary evidence in the case is to be
included, a statement to that effect will be sufficient without
mentioning the names of the witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding twenty (20) pages must
contain a subject index.

There was also a “war room” in the Sandiganbayan which was for the
President’s employees who were there to see to it that Marcos’
instructions will be complied with. There was also a brownout during
the time one of the witnesses was giving her testimony, + other
events which logically led to the conclusion that the assassination
was a conspiracy.

SC: The trial declared for the Aquino-Galman case is a sham trial and
that the pre-determined judgment of acquittal was unlawful and void
ab initio. There can be no double jeopardy since the judgment has
been declared void.

The biased Tanodbayan under the constant and pervasive

monitoring and pressure exerted by the authoritarian President to
assure the carrying out of his instructions. A dictated, coerced,
scripted verdict of acquittal is a VOID JUDGMENT which is NO
JUDGMENT AT ALL.

With the declaration of nullity, the cases must now be tried before an
impartial court with an unbiased prosecutor.
The judgment in People v. Gen Luther Custodia is hereby nullified, a
re-trial of the case is ordered.

b. What is the period to move for a new trial or a

reconsideration?
- Filed any time before judgment of conviction becomes final ( In
criminal cases)
- Filed within the period for taking an appeal (In Civil Cases)

c. What is the period to appeal a judgement?

- Sec. 3. Period of ordinary appeal.

The appeal shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record on
appeal within thirty (30) days from notice of the judgment or final
order.
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