Rivera, Jr. vs. People

A verbal order dismissing a criminal case in open court does not amount to a judgment of acquittal, and double jeopardy does not attach, unless the dismissal is written in the official language, personally and directly prepared by the judge, and signed by him.

Marcelino G. Rivera, Jr. was the accused in a criminal case for violation of Section 4, Article II of RA 6425 before the RTC of Baguio City, Branch III, presided over by Judge Marcelino F. Bautista, Jr. Under the Rules of Court, a judgment and an order of dismissal that would have the effect of a judgment must be written, personally and directly prepared by the judge, and signed by him.

On December 16, 1988, Marcelino G. Rivera, Jr. was arrested and detained for allegedly being about to transport marijuana to Manila. On December 20, 1988, a case for violation of Section 4, Article II of RA 6425 was filed against him with the RTC of Baguio City, Branch III, presided over by Judge Marcelino F. Bautista, Jr. Rivera was arraigned on February 20, 1989 and pleaded not guilty.

On April 5, 1989, the first prosecution witness, Cpl. Victorio Afalla, partially testified on direct examination and reserved the right to identify the marijuana specimen allegedly confiscated from Rivera. The hearing was reset to May 3, 1989 and June 6, 1989, but because no prosecution witness appeared despite notice and the allegedly confiscated marijuana specimen was unavailable, those hearings were postponed to June 8, 1989. On June 8, 1989, for the same reasons, the hearing was reset to February 27, 1990.

On February 27, 1990, Capt. Lina Sarmiento, the forensic chemist who was to present the marijuana specimen, failed to appear despite notice. Rivera, through counsel, moved for dismissal of the case. Judge Bautista denied the motion and reset the hearing to March 28, 1990. On March 28, 1990, when the case was called at about 8:30 a.m., Sarmiento was not around despite notice, so the case had to be called a second time; at about 9:00 a.m., she was still not around. Atty. Tomas Gorospe, for Rivera, then orally moved for dismissal, invoking Rivera’s right to speedy trial because he was confined and because the Government failed to prosecute or adduce evidence due to the non-appearance of a vital prosecution witness. Judge Bautista verbally granted the motion and ordered Rivera’s immediate release.

While the subsequent calendared cases for that day were in progress, and in less than an hour after the verbal order of dismissal, Sarmiento arrived direct from Quezon City. Upon a satisfactory explanation, Judge Bautista issued the assailed Order setting aside his previous verbal order of dismissal and rescheduling Criminal Case No. 6201-R for continuation of trial. Rivera then filed the instant petition, alleging that the verbal order of dismissal made in open court amounted to his acquittal, that it was immediately final and executory, and that Judge Bautista could no longer set it aside without violating his constitutional right against double jeopardy.

• Double Jeopardy / Finality of Dismissal: Petitioner alleged that the verbal order of dismissal made in open court amounted to his acquittal; that the order was immediately final and executory; and that respondent Judge could no longer set it aside without violating his constitutional right against double jeopardy.

• Finality of Verbal Dismissal / Double Jeopardy: Whether a verbal order of dismissal dictated in open court, not reduced to writing and signed by the judge, amounts to a judgment of acquittal that is immediately final and executory, such that its subsequent setting aside violates the accused’s right against double jeopardy.

• Finality of Verbal Dismissal / Double Jeopardy: No. A verbal order of dismissal is incomplete and ineffective until written, personally prepared by the judge, and signed; it does not attain the effect of a judgment of acquittal, so the judge may set it aside and reinstate the case.

• Finality of Verbal Dismissal / Double Jeopardy: The SC anchored the ruling on the requirement that a judgment, and an order of dismissal that would have the effect of a judgment, must be written, personally and directly prepared by the judge, and signed by him. It cited Cabarroguis vs. San Diego, where a verbal order of dismissal was withdrawn or set aside as soon as it was dictated and before it could be reduced to writing and signed; because it was never put in writing or signed, it was incomplete and did not have the effect of acquitting the accused before it was withdrawn. The SC also quoted Abay Sr. vs. Garcia, which held that where there is a valid information and the accused has been arraigned, an order of dismissal issued by the court motu proprio in the course of trial, whether based on the merits or for failure of prosecution witnesses to appear, has the effect of a judgment of acquittal and double jeopardy attaches, and the order is immediately executory; however, the order must be written in the official language, personally and directly prepared by the judge, and signed by him. In this case, the order was merely dictated in open court, and there was no showing that it was ever reduced to writing and duly signed by the judge. It therefore did not yet attain the effect of a judgment of acquittal, and it remained within the judge’s powers to set it aside and enter another order, now in writing and duly signed by him, reinstating the case. The SC rejected petitioner’s reliance on cases involving written orders of dismissal signed by the corresponding judges, as those cases were not controlling.

• Verbal dismissal is not a judgment of acquittal — An order dismissing a criminal case, even if dictated in open court after a motion to dismiss for failure to prosecute, must be written in the official language, personally and directly prepared by the judge, and signed by him before it can operate as a judgment of acquittal and trigger double jeopardy. In this case, the verbal order was not reduced to writing or signed, so it was incomplete and could be set aside.
• Requisites for dismissal to amount to acquittal — Where there is a valid information and the accused has been arraigned, an order of dismissal issued by the court motu proprio in the course of trial, whether based on the merits or for failure of prosecution witnesses to appear, has the effect of a judgment of acquittal and double jeopardy attaches, and the order is immediately executory; but the order must be written in the official language, personally and directly prepared by the judge, and signed by him. The SC applied the writing-and-signing requirement to hold the verbal dismissal ineffective.

• "The petition should be denied. The earlier verbal order of dismissal was not final, in fact, was ineffective, because it left something to be done in line with the decision of this Court in Cabarroguis vs. San Diego, L-19517, Nov. 30, 1962, 6 SCRA 866." — The SC states the core conclusion that the verbal dismissal was not final and was ineffective.
• "However, this order of dismissal must be written in the official language, personally and directly prepared by the judge and signed by him conformably with the provisions of Rule 120, section 2 of the Rules of Court." — The SC quotes the writing requirement that controls whether an order of dismissal operates as an acquittal.
• "Thus, it did not yet attain the effect of a judgment of acquittal, so that it was still within the powers of the judge to set it aside and enter another order, now in writing and duly signed by him, reinstating the case." — The SC applies the rule to the verbal order and explains why reinstatement was permissible.

• Cabarroguis vs. San Diego, L-19517, Nov. 30, 1962, 6 SCRA 866 — Controlling precedent cited by the SC for the rule that a verbal order of dismissal, withdrawn before it is reduced to writing and signed, is incomplete and ineffective.
• Abay Sr. vs. Garcia, No. 66132, June 27, 1988, 162 SCRA 665 — Re-echoed the doctrine; the SC quoted it to hold that an order of dismissal must be written, personally prepared by the judge, and signed before it operates as a judgment of acquittal.

• Section 2, Rule 116, Rules of Court — Requires the judgment, and an order of dismissal that would have the effect of a judgment, to be written, personally and directly prepared by the judge, and signed by him; applied to hold the verbal dismissal incomplete.
• Section 2, Rule 120, Rules of Court — Cited in Abay Sr. vs. Garcia as the basis for requiring the order of dismissal to be written in the official language, personally and directly prepared by the judge, and signed by him; applied to the same effect.