Case Digest: Pecho vs. Sandiganbayan, G.R. No. 111399, November 14, 1994

                         Motion to Quash | Criminal Procedure

Facts:

The petitioner, Odon Pecho, and Jose Catre were charged with the violation of Section 3 (e) of R.A. No. 3019, also known as the Anti-Graft and Corrupt Practices Act.

The charges were related to an alleged fraudulent importation scheme involving misdeclaration of goods and evasion of taxes and duties.

The petitioner filed a motion for reconsideration, citing various grounds including the invalidity of the information, failure of the prosecution to prove guilt beyond reasonable doubt, and the non-existence of the crime charged.

The Sandiganbayan denied the petitioner's motion for reconsideration, stating that the decision was supported by proof beyond reasonable doubt.

The Office of the Solicitor General agrees with the petitioner that the prosecution failed to prove the elements of the crime and recommends his acquittal but suggests administrative charges against him.

The Sandiganbayan ruled that the violation of Section 3 (e) of RA 3019 is always consummated regardless of whether the accused achieved their purpose, and the provisions of the Revised Penal Code on attempted or frustrated felonies do not apply.

Issue:

WoN the Sandiganbayanb erred in denying the petitioner's motion for reconsideration.

Held: DENIED.

We agree with the respondent Sandiganbayan and the Office of the Solicitor General that, indeed, the procedural issue raised is without merit. Firstly, the certification of the investigating Prosecutor in the information is sufficient. His failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence, which the petitioner claims is fatal because it is mandatorily required by Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor stated under oath that, inter alia, "a preliminary investigation has been conducted in this case," he gave the solemn assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The certification in question is similarly worded as that involved in Alvizo v. Sandiganbayan, which this Court explicitly declared to be sufficient. This Court also reiterated therein the doctrine laid down in People v. Marquez, that the absence of a certification as to the holding of a preliminary investigation does not invalidate an information because such certification is not an essential part of the information itself. In Marquez, this Court held:

"It should be observed that section 3 of Rule 110 defines an information as nothing more than ‘an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court.’ Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that ‘no information . . . shall be filed, without first giving the accused a chance to be heard in a preliminary investigation,’ but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted."

If the absence of a certification would not even invalidate the information, then its presence, although deficient because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former.

The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right prior to or at least at the time of the accused’s plea. Where the accused pleaded to the charge, he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it. The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 

Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. The presumption of regularity in the performance of official duty 19 on the part of the investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse resolution pursuant to Section 6 which reads:

"Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman."

does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the information is based was not served upon the Respondent. The contention that the provision is mandatory in order to allow the respondent to avail of the 15-day period to file a motion for reconsideration or reinvestigation is not persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed and acted upon by the Ombudsman if so directed by the court where the information was filed. Finally, just as in the case of lack of or irregularity in the conduct of the preliminary investigation, a party, like the petitioner herein, should have seasonably questioned the procedural error at any time before he entered his plea to the charge. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman.