FIRST DIVISION

[G.R. No. 162206. November 17, 2010.]

MONICO V. JACOB and CELSO L. LEGARDA , petitioners, vs . HON.

SANDIGANBAYAN FOURTH DIVISION and THE OFFICE OF THE
OMBUDSMAN , respondents.

DECISION

LEONARDO-DE CASTRO , J : p

This is a Petition for Certiorari under Rule 65 of the Rules of Court for the
nulli cation of the Resolutions dated February 4, 2002 1 of the Sandiganbayan Special
Fourth Division and December 12, 2003 2 of the Sandiganbayan Fourth Division. In its
Resolution dated February 4, 2002, the Sandiganbayan Special Fourth Division set aside
the order to dismiss Criminal Case Nos. 25922-25939, among other cases, verbally
issued by Associate Justice Narciso S. Nario (Justice Nario), Chairman of the
Sandiganbayan Fourth Division, during the court session held on August 20, 2001; 3
while in its Resolution dated December 12, 2003, the Sandiganbayan Fourth Division
denied the motions for reconsideration of the petitioners and other accused.
The following facts are duly established from the pleadings of the parties:
From 1993 to 1997, Petron Corporation (Petron), a corporation engaged in the
business of re ning, marketing and distribution of petroleum products, received Tax
Credit Certi cates (TCCs) by assignment from 18 private rms 4 registered with the
Board of Investments (BOI). The TCCs were issued by the One Stop Shop Inter-Agency
Tax Credit & Duty Drawback Center (OSS), an o ce under the Department of Finance
(DOF), created by virtue of Administrative Order No. 266 dated February 7, 1992. Petron
used the assigned TCCs to pay its excise tax liabilities.
The practice was for the BOI-registered rms to sign the Deeds of Assignment
upon delivery of the TCCs to Petron. Petron then forwarded said documents to the OSS,
with a request for authorization to use said TCCs to pay for its excise tax liabilities. DOF
Undersecretary Antonio P. Belicena (Belicena) approved the request of Petron through
the issuance of Tax Debit Memoranda (TDM) addressed to the Collection Program
Division of the Bureau of Internal Revenue (BIR). The BIR Collection Program Division
accepted the TCCs as payment for the excise tax liabilities of Petron by issuing its own
TDM. 5 The control numbers of the BIR-TDM were indicated on the back of the TCCs,
marking the final utilization of the tax credits. 6
However, the Fact Finding and Intelligence Bureau (FFIB) of the O ce of the
Ombudsman eventually found that the aforementioned transactions involving the TCCs
were irregular and violative of the Memorandum of Agreement dated August 29, 1989
between the BOI and the DOF, which implemented Article 21 of Executive Order No.
226, otherwise known as the Omnibus Investments Code of 1987. 7 cHCIEA

After the termination of the requisite preliminary investigation, the O ce of the

Ombudsman issued a Resolution dated March 27, 2000 nding probable cause against
several public o cers and private individuals, including petitioners Monico V. Jacob
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 (Jacob), President, and Celso L. Legarda (Legarda), Vice-President and General
Manager for Marketing, both of Petron, for perpetrating the so-called "tax credit scam."
On April 10, 2010, the O ce of the Ombudsman led a total of 62 Informations, 18 of
which, docketed as Criminal Case Nos. 25922-25939, were against DOF
Undersecretary Belicena, OSS Deputy Executive Director Uldarico P. Andutan, Jr.,
petitioners and other Petron o cials, and o cers of the BOI-registered rms which
assigned the TCCs to Petron, charging them with violation of Section 3 (e) of Republic
Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Petitioners provided an undisputed account of the events that subsequently took
place before the Sandiganbayan:
On April 14, 2000, petitioners and the four other Petron o cers who were
similarly charged led a Motion for Reinvestigation [with the O ce of the
Ombudsman].
On 17 April 2000, the [Sandiganbayan Fourth Division] issued an Order
giving the prosecution a period of sixty (60) days within which —
. . . to re-assess its evidence in these cases and to take appropriate
action on the said motion for reconsideration of accused movants and to
inform the Court within the same period as to its ndings and
recommendations including the action thereon of the Honorable
Ombudsman.

Sixty (60) days passed but the O ce of the Ombudsman did not even
bother to submit a report on the status of the motions for reconsideration. Months
passed, and then, AN ENTIRE YEAR PASSED. There was still nothing from the
respondent Office of the Ombudsman.

In the meantime, petitioner Jacob was arraigned on 1 June 2000 while

petitioner Legarda was arraigned on 18 May 2001.

On March 20, 2001, in view of a signi cant development in the Shell cases
(then pending with the 5th Division of [the Sandiganbayan]), petitioners and other
accused Petron o cials led a Motion to Resolve with the O ce of the
Ombudsman. In the said motion, petitioners cited the Memorandum dated 30
January 2001 issued by Special Prosecutor Leonardo P. Tamayo upholding the
dropping of the charges against Shell o cial Paci co Cruz on the ground that
there was no su cient evidence to prove that he was part of the conspiracy.
Petitioners asserted that since their situation/alleged participation is similar to
that of Mr. Paci co Cruz, they should similarly be dropped from the criminal
cases. Despite this, the respondent Office of the Ombudsman took no action.

Considering the time that had lapsed, the [Sandiganbayan Fourth Division],
at the hearing on 1 June 2001, expressly warned the prosecution that should it
fail to resolve the reconsideration/investigation, it would order the dismissal of
the cases or require the prosecution to show cause why it should not be cited for
contempt.

In its Resolution dated 26 June 2001, the [Sandiganbayan Fourth Division]

in fact denied the motion of the prosecution for the resetting of the scheduled
arraignment and pre-trial on 2 July 2001 "it appearing that the Reinvestigation of
these cases has been pending for more than one (1) year now and the court
cannot countenance the unreasonable delay attributable to the plaintiff."

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 In spite of the denial of their motion, the prosecution still failed to submit
its report to the [Sandiganbayan Fourth Division] during the 2 July 2001 hearing.
Instead they asked for a period of seven (7) more days to resolve the motions for
reconsideration. The arraignment (of the other accused) and pre-trial therefore
had to be reset again to 17 July 2001.

One day before the schedule hearing, the prosecution led a Manifestation
requesting the cancellation of the arraignment and pre-trial scheduled the next
day on the ground that the motions for reconsideration/reinvestigation were still
pending resolution. aHADTC

Once again, [the Sandiganbayan Fourth Division] gave the prosecution

another chance. During the hearing on 17 July 2001, the [Sandiganbayan 4th
Division] directed the prosecution, through Prosecutor Orlando Ines, to terminate
the reinvestigation within a period of one (1) more month. The arraignment and
pre-trial were then reset to 20 August 2001.

At the scheduled hearing on August 20, 2001, Prosecutor Orlando Ines,

however, again requested for the deferment of the arraignment and pre-trial on the
ground that the resolution on the various motions for
reconsideration/reinvestigation were still pending approval by the O ce of the
Ombudsman.
In all the hearings conducted in the cases the defense verbally and
consistently invoked their right to speedy trial and moved for the dismissal of the
cases. In the course of more than one year, however, the [Sandiganbayan 4th
Division] kept affording the prosecution one chance after another. The sixty days
granted to the prosecution became more than four hundred days — still, there was
no resolution in sight.

Thus on 20 August 2001, compelled by its duty to uphold the fundamental

law, the [Sandiganbayan Fourth Division, through its Chairman, Justice Nario]
issued a verbal order dismissing the cases. The dismissal was duly recorded in
the minutes of the hearing of the said date which was attested to by the Clerk of
Court and signed by the parties.

On 24 August 2001, the prosecution led a Motion for Reconsideration

with the following prayer: "WHEREFORE, the undersigned Ombudsman
Prosecutors prayed (sic) that the Order issued by the Honorable Court for the
summary dismissal of all the graft and estafa charges aforecited be SET ASIDE."
On August 31, 2001, the [Sandiganbayan Fourth Division] issued an Order
taking cognizance of the Motion for Reconsideration led by the prosecution and
requiring the accused to le their respective comments thereon within ve (5)
days.
On 4 February 2002, OR SIX (6) MONTHS after [Justice Nario] issued the
verbal order of dismissal, the [Sandiganbayan Special Fourth Division] issued an
Order setting aside said verbal order.
xxx xxx xxx

In the 4 February 2002 Resolution, this time a Division of ve justices (two

of whom dissented) rendered a Resolution stating:

WHEREFORE, the dismissal of these cases orally ordered in open

court by the Chairman of the Fourth Division during its court session held
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 on August 20, 2001, and reiterated in his subsequent ponencia, is hereby
set aside. 8 (Citations omitted.)
cDCaTH

The Sandiganbayan Special Fourth Division gave the following reasons for
overruling Justice Nario's verbal order dismissing the criminal cases against the
accused in the alleged tax credit scam:
In the present case, (1) there is already a delay of the trial for more than
one year now; (2) but it is not shown that the delay is vexatious, capricious and
oppressive; (3) it may be that, as stated in the herein dissented Resolution, "at the
hearings conducted in these cases, the defense orally, openly and consistently
asked for the dismissal of these cases"; however, these oral manifestations were
more of "knee-jerk reactions" of the defense counsel in those hearings everytime
the prosecution requested for postponement than anything else as said defense
counsel did not seriously pursue the dismissal of these cases, such as by
reducing their "request" in a formal written motion to dismiss and/or insisting that
the court formally rule on their request for dismissal and go on certiorari if denied;
and (4) considering the nature and importance of the cases, if there is any
prejudice that may have resulted as a consequence of the series of
postponements, it would be more against the government than against any of the
accused; however, be that as it may, none of the herein accused has come out to
claim having been thus prejudiced. 9

On February 26, 2002, petitioners, together with four other co-accused Petron
o cials, led a Motion for Reconsideration 1 0 of the February 4, 2002 Resolution of the
Sandiganbayan Special Fourth Division. Other accused also led their motions for
reconsideration and motions to quash/dismiss. The prosecution expectedly opposed
all such motions of the accused.
In an Omnibus Resolution dated December 12, 2003, the Sandiganbayan Fourth
Division ruled in the prosecution's favor and denied all the motions led by the accused,
to wit:
Wherefore, premises considered, this court issues an Omnibus Resolution
denying all the above-described Motion to Quash for lack of merit.
Hence, petitioners come before us via the instant Petition for Certiorari averring
grave abuse of discretion on the part of the Sandiganbayan Special Fourth Division,
specifically:
I

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING PETITIONERS'
RIGHT TO SPEEDY TRIAL.

II
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
PETITIONERS HAVE NOT BEEN PUT IN DOUBLE JEOPARDY. aESIDH

III
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING THE
GLARING LACK OF EVIDENCE AGAINST PETITIONERS. 1 1
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 To recall, Justice Nario, as the Chairman of the Sandiganbayan Fourth Division,
ordered the dismissal of all criminal cases arising from the purported tax credit scam
on the ground that the accused, including petitioners, had already been deprived of their
right to a speedy trial and disposition of the cases against them. Petitioners assert that
the Sandiganbayan gravely abused its discretion in reversing Justice Nario's order of
dismissal of Criminal Case Nos. 25922-25939 because such reversal violated
petitioners' constitutional right against double jeopardy.
An accused's right to "have a speedy, impartial, and public trial" is guaranteed in
criminal cases by Section 14 (2), Article III 1 2 of the Constitution. This right to a speedy
trial may be de ned as one free from vexatious, capricious and oppressive delays, its
"salutary objective" being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his guilt determined
within the shortest possible time compatible with the presentation and consideration
of whatsoever legitimate defense he may interpose. Intimating historical perspective
on the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice
delayed is justice denied." This oft-repeated adage requires the expeditious resolution
of disputes, much more so in criminal cases where an accused is constitutionally
guaranteed the right to a speedy trial. 1 3
Hence, the Revised Rules on Criminal Procedure also include provisions that
ensure the protection of such right. As we presented in Uy v. Hon. Adriano: 1 4
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides
that the accused is entitled to a speedy, impartial and public trial. Section 2, Rule
119 of the said Rules provides that trial, once commenced, shall be continuous
until terminated:

Sec. 2. Continuous trial until terminated; postponements. —

Trial, once commenced, shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable period
of time for good cause.

The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trial on a weekly or other short-term
trial calendar at the earliest possible time so as to ensure speedy trial. In no
case shall the entire trial period exceed one hundred eighty (180) days
from the rst day of trial, except as otherwise authorized by the Supreme
Court.
The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the Supreme
Court provide for a shorter period of trial.

However, any period of delay resulting from a continuance granted by the

court motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its ndings set
forth in the order that the ends of justice is served by taking such action outweigh
the best interest of the public and the accused on a speedy trial, shall be
deducted. IDSaEA

The trial court may grant continuance, taking into account the following
factors:
(a) Whether or not the failure to grant a continuance in the
proceeding would likely make a continuation of such proceeding
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 impossible or result in a miscarriage of justice; and

(b) Whether or not the case taken as a whole is so novel,

unusual and complex, due to the number of accused or the nature of the
prosecution, or that it is unreasonable to expect adequate preparation
within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be
granted because of congestion of the court's calendar or lack of diligent
preparation or failure to obtain available witnesses on the part of the
prosecutor. 1 5

We further emphasized in Uy that "speedy trial" is a relative term and necessarily

a exible concept. In determining whether the right of the accused to a speedy trial was
violated, the delay should be considered, in view of the entirety of the proceedings.
Indeed, mere mathematical reckoning of the time involved would not su ce as the
realities of everyday life must be regarded in judicial proceedings which, after all, do not
exist in a vacuum. 1 6
Corpuz v. Sandiganbayan 1 7 is a case originating from exactly the same factual
background as the case at bar. Therein petitioners Marialen C. Corpuz and Antonio H.
Roman, Sr. were o cers of FILSYN Corporation, one of the BOI-registered rms that
assigned TCCs to Petron; and were among the accused in Criminal Case No. 25922.
They led a separate Petition for Certiorari before us assailing the Resolutions dated
February 4, 2002 of the Sandiganbayan Special Fourth Division and December 12, 2003
of the Sandiganbayan Fourth Division.
We expounded more extensively in Corpuz on the right of the accused to a
speedy trial and disposition of the case against him, thus:
The right of the accused to a speedy trial and to a speedy disposition of
the case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an inde nite time, and to
prevent delays in the administration of justice by mandating the courts to proceed
with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial
and a speedy disposition of a case is violated only when the proceeding is
attended by vexatious, capricious and oppressive delays. The inquiry as to
whether or not an accused has been denied such right is not susceptible by
precise quali cation. The concept of a speedy disposition is a relative term and
must necessarily be a flexible concept. TDcHCa

While justice is administered with dispatch, the essential

ingredient is orderly, expeditious and not mere speed . It cannot be
de nitely said how long is too long in a system where justice is supposed to be
swift, but deliberate. It is consistent with delays and depends upon
circumstances. It secures rights to the accused, but it does not preclude
the rights of public justice . Also, it must be borne in mind that the rights given
to the accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent. 1 8 (Emphases ours.)

We went on to lay down in Corpuz the test for determining whether an accused
was indeed deprived of his right to a speedy trial and disposition of the case against
him:
In determining whether the accused has been deprived of his right to a
speedy disposition of the case and to a speedy trial, four factors must be
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 considered: (a) length of delay; (b) the reason for the delay; (c) the defendant's
assertion of his right; and (d) prejudice to the defendant. Prejudice should be
assessed in the light of the interest of the defendant that the speedy trial was
designed to protect, namely: to prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused to trial; and to limit the possibility
that his defense will be impaired. Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case skews the fairness of
the entire system. There is also prejudice if the defense witnesses are unable to
recall accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and
by living under a cloud of anxiety, suspicion and often, hostility. His nancial
resources may be drained, his association is curtailed, and he is subjected to
public obloquy.
Delay is a two-edge sword. It is the government that bears the burden of
proving its case beyond reasonable doubt. The passage of time may make it
di cult or impossible for the government to carry its burden. The Constitution
and the Rules do not require impossibilities or extraordinary efforts, diligence or
exertion from courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting criminals. As
held in Williams v. United States , for the government to sustain its right to try the
accused despite a delay, it must show two things: (a) that the accused suffered
no serious prejudice beyond that which ensued from the ordinary and inevitable
delay; and (b) that there was no more delay than is reasonably attributable to the
ordinary processes of justice.

Closely related to the length of delay is the reason or justi cation of the
State for such delay. Different weights should be assigned to different reasons or
justi cations invoked by the State. For instance, a deliberate attempt to delay the
trial in order to hamper or prejudice the defense should be weighted heavily
against the State. Also, it is improper for the prosecutor to intentionally delay to
gain some tactical advantage over the defendant or to harass or prejudice him.
On the other hand, the heavy case load of the prosecution or a missing witness
should be weighted less heavily against the State. Corollarily, Section 4, Rule 119
of the Revised Rules of Criminal Procedure enumerates the factors for granting a
continuance. 1 9 TICaEc

In the Petition at bar, Criminal Case Nos. 25922-25939 were led on April 10,
2000. Petitioner Jacob was arraigned on June 1, 2000, while petitioner Legarda was
arraigned on May 18, 2001; with both petitioners pleading not guilty. Since then, there
had been no other signi cant development in the cases since the prosecution
repeatedly requested for deferment or postponement of the scheduled hearings as it
awaits the result of the reinvestigation of the O ce of the Ombudsman. Judge Nario
verbally ordered the dismissal of said cases during the hearing on August 20, 2001.
Thus, the criminal cases had been pending for about a year and four months by the time
they were dismissed by Justice Nario.
The accused, including petitioners, had consistently asked in open court that the
criminal cases be dismissed every time the prosecution moved for a deferment or
postponement of the hearings.
The prosecution attributed the delay in the criminal proceedings to: 1) the 23
motions for reinvestigation or reconsideration led by the accused, which was granted
by the Sandiganbayan in its April 17, 2000 Order; and 2) the failure of the O ce of the
Ombudsman to terminate its reinvestigation and submit its report within the 60-day
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 period fixed by the said graft court.
Irrefragably, there had been an undue and inordinate delay in the reinvestigation
of the cases by the O ce of the Ombudsman, which failed to submit its reinvestigation
report despite the lapse of the 60-day period set by the Sandiganbayan, and even more
than a year thereafter. That there were 23 Motions for Reinvestigation led is
insigni cant. It should be stressed that reinvestigation, as the word itself implies, is
merely a repeat investigation of the case. It is simply a chance for the O ce of the
Ombudsman to review and re-evaluate its ndings based on the evidence previously
submitted by the parties. The O ce of the Ombudsman should have expedited the
reinvestigation, not only because it was ordered by the Sandiganbayan to submit a
report within a period of 60 days, but also because said O ce is bound by the
Constitution 2 0 and Republic Act No. 6770, otherwise known as the Ombudsman Act of
1989, 2 1 to act promptly on complaints and cases pending before it.
Nevertheless, while the re-investigation by the O ce of the Ombudsman delayed
the proceedings in Criminal Case Nos. 25922-25939, the said process could not have
been dispensed with as it was undertaken for the protection of the rights of petitioners
themselves (and their co-accused) and their rights should not be compromised at the
expense of expediency.
In Corpuz, we warned against the overzealous or precipitate dismissal of a case
that may enable the defendant, who may be guilty, to go free without having been tried,
thereby infringing the societal interest in trying people accused of crimes rather than
granting them immunization because of legal error. 2 2 Earlier, in People v. Leviste , 2 3 we
already stressed that: DASEac

[T]he State, like any other litigant, is entitled to its day in court, and to a
reasonable opportunity to present its case. A hasty dismissal such as the one in
question, instead of unclogging dockets, has actually increased the workload of
the justice system as a whole and caused uncalled-for delays in the nal
resolution of this and other cases. Unwittingly, the precipitate action of the
respondent court, instead of easing the burden of the accused, merely prolonged
the litigation and ironically enough, unnecessarily delayed the case — in the
process, causing the very evil it apparently sought to avoid. Such action does not
inspire public confidence in the administration of justice. 2 4

Thus, even though we acknowledge the delay in the criminal proceedings, as well
as the prejudice suffered by petitioners and their co-accused by reason thereof, the
weighing of interests militate against a nding that petitioners' right to speedy trial and
disposition of the cases involving them would have justi ed the dismissal of Criminal
Case Nos. 25922-25939. We agree with the Sandiganbayan Special Fourth Division that
Justice Nario's dismissal of the criminal cases was unwarranted under the
circumstances, since the State should not be prejudiced and deprived of its right to
prosecute the criminal cases simply because of the ineptitude or nonchalance of the
Office of the Ombudsman. We reiterate our observations in Corpuz that:
There can be no denying the fact that the petitioners, as well as the other
accused, was prejudiced by the delay in the reinvestigation of the cases and the
submission by the Ombudsman/Special Prosecutor of his report thereon. So was
the State. We have balanced the societal interest involved in the cases and the
need to give substance to the petitioners' constitutional rights and their quest for
justice, and we are convinced that the dismissal of the cases is too drastic a
remedy to be accorded to the petitioners. The cloud of suspicion may still linger
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 over the heads of the petitioners by the precipitate dismissal of the cases. We
repeat — the cases involve the so-called tax credit certi cates scam and hundreds
of millions of pesos allegedly perpetrated by government o cials in connivance
with private individuals. The People has yet to prove the guilt of the petitioners of
the crimes charged beyond reasonable doubt. We agree with the ruling of the
Sandiganbayan that before resorting to the extreme sanction of depriving the
petitioner a chance to prove its case by dismissing the cases, the
Ombudsman/Special Prosecutor should be ordered by the Sandiganbayan under
pain of contempt, to explain the delay in the submission of his report on his
reinvestigation. 2 5

Furthermore, the Sandiganbayan Special Fourth Division did not abuse its
discretion in setting aside Justice Nario's verbal order, which dismissed Criminal Case
Nos. 25922-25939, for not only was such order baseless, as we had previously
discussed herein; but more importantly, because it is an utter nullity, as we had ruled in
Corpuz. CITcSH

We held in Corpuz that:

In the unanimous Resolution of December 12, 2003, the Sandiganbayan
ruled as follows:
In the cases at bar, the dismissal made in open court by the
Chairman, which was not reduced in writing, is not a valid dismissal or
termination of the cases. This is because the Chairman cannot unilaterally
dismiss the same without the approval or consent of the other members of
the Division. The Sandiganbayan is a collegiate court and under its internal
rules prevailing at the time (Rule XVIII, Section 1(b) of the 1984 Revised
Rules of the Sandiganbayan, which is now Section 1(b), Rule VIII of the
2002 Revised Internal Rules of the Sandiganbayan), an order, resolution or
judgment, in order to be valid — that is to say, in order to be considered as
an o cial action of the Court itself — must bear the unanimous approval
of the members of the division, or in case of lack thereof, by the majority
vote of the members of a special division of five.
We agree with the foregoing ratiocination. Section 1, Rule 120 of the
Revised Rules of Criminal Procedure, mandates that a judgment must be
written in the o cial 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. The rule
applies to a nal order dismissing a criminal case grounded on the
violation of the rights of the accused to a speedy trial. A verbal
judgment or order of dismissal is a violation of the provision; hence,
such order is, in contemplation of law, not in esse , therefore,
ineffective . Justice Nario failed to issue a written resolution dismissing the
criminal cases for failure of the prosecution to submit its report on the
reinvestigation of the cases within the sixty-day period xed by the graft court.
Moreover, the verbal order was rejected by majority vote of the members of the
Sandiganbayan Special Division. In ne, there has been no valid and effective
order of dismissal of the cases. The Sandiganbayan cannot then be faulted for
issuing the assailed resolutions.
Neither are the petitioners entitled to a writ of mandamus to compel the
Sandiganbayan to reinstate the cases, considering that the verbal order of
Justice Nario as aforestated does not exist at all in contemplation of
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 law . 2 6 (Emphases ours.)

Given that Justice Nario's verbal order dismissing Criminal Case Nos. 25922-
25939 is null and void, and does not exist at all in contemplation of law, it follows that
petitioners cannot invoke the constitutional right against double jeopardy. aAHTDS

To substantiate a claim for double jeopardy, the following must be

demonstrated:
(1)[A] rst jeopardy must have attached prior to the second; (2) the rst
jeopardy must have been validly terminated; (3) the second jeopardy must be for
the same offense, or the second offense includes or is necessarily included in the
offense charged in the rst information, or is an attempt to commit the same or is
a frustration thereof.

And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a
competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered;
and (e) the case was dismissed or otherwise terminated without the express
consent of the accused. 2 7

In the instant Petition, legal jeopardy has not yet attached since there is so far no
valid dismissal or termination of the criminal cases against petitioners.
Finally, the Sandiganbayan Special Fourth Division did not commit grave abuse of
discretion nor erred in not considering the glaring lack of evidence against petitioners.
As we pointed out in Rizon v. Desierto: 2 8
Time and again, we have held that a prosecutor does not decide whether
there is evidence beyond reasonable doubt of the guilt of the person charged. He
merely determines whether there is su cient ground to engender a well-founded
belief that a crime has been committed and that the accused is probably guilty
thereof, and should be held for trial. A nding of probable cause, therefore, does
not require an inquiry as to whether there is su cient evidence to secure a
conviction. It is enough that the prosecutor believes that the act or omission
complained of constitutes the offense charged. A trial is intended precisely for the
reception of prosecution evidence in support of the charge. It is the court that is
tasked to determine guilt beyond reasonable doubt based on the evidence
presented by the parties at the trial on the merits. 2 9

Here, there has been no trial yet. Therefore, there has been no occasion yet for
the full and exhaustive display of the parties' evidence. The presence or absence of the
elements of the crime is evidentiary in nature that shall be passed upon after a full-
blown trial on the merits.
WHEREFORE , there being no showing that the impugned Resolutions dated
February 4, 2002 of the Sandiganbayan Special Fourth Division and December 12, 2003
of the Sandiganbayan Fourth Division in Criminal Case Nos. 25922-25939 are tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction, the instant
Petition for Certiorari is DISMISSED for lack of merit. AaCTcI

SO ORDERED .
Corona, C.J., Velasco, Jr., Peralta * and Perez, JJ., concur.

Footnotes
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 *Per Special Order No. 913 dated November 2, 2010.
1.Rollo, pp. 54-59; penned by Associate Justice Nicodemo T. Ferrer with Associate Justices
Rodolfo G. Palattao and Catalino R. Castañeda, Jr., concurring, and Associate Justices
Narciso S. Nario and Raoul V. Victorino, dissenting.
2.Id. at 47-53.

3.Rollo, pp. 54-58; issued in Criminal Case Nos. 25911-25915; 25917-25939; and 25983-26016.
4.Id. at 356; Filsyn Corporation, Dragon Textile Mills, Inc., Southern Textile Mills, Inc., Fiber
Technology Corporation, Diamond Knitting Corp., Filstar Textile Industrial Corporation,
R.S. Textile Mills, Monte Textile Manufacturing Corporation, Master Colour System
Corporation, First Unity Textile Mills, Jantex Philippines, Inc., Unisol Industries &
Manufacturing Corporation, Southern Dae Yeong Corporation, Solid Development
Corporation, Asia Textiole Mills, Inc., Phelps Dodge Philippines, Inc., Alliance Thread Co.,
Inc., and Kewalram Philippines, Inc.
5.BIR Form No. 2321.

6.Rollo, p. 357.
7.Id. at 357-358.
8.Id. at 16-25.
9.Sandiganbayan Record of Criminal Case No. 25922, Volume 1, pp. 318-319.

10.Id. at 356-364.
11.Rollo, p. 19.

12.Sec. 14 (2). In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his
behalf. . . . .

13.Tan v. People, G.R. No. 173637, April 21, 2009, 586 SCRA 139, 151-152.
14.G.R. No. 159098, October 27, 2006, 505 SCRA 625.

15.Id. at 638-639.

16.Id. at 639-640.
17.G.R. No. 162214, November 11, 2004, 442 SCRA 294.

18.Id. at 312-313.

19.Id. at 313-314.
20.Sec. 12, Article XI of the 1987 Constitution, reads:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the government, or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof.
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 21.Section 13 of Republic Act No. 6770, provides:

Sec. 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation, and enforce their administrative,
civil and criminal liability in every case where the evidence warrants in order to promote
efficient service by the Government to the people.

22.Corpuz v. Sandiganbayan, supra note 17 at 322.

23.325 Phil. 525 (1996).

24.Id. at 538.

25.Corpuz v. Sandiganbayan, supra note 17 at 323.

26.Id. at 308-309.

27.People v. Espinosa, 456 Phil. 507, 518 (2003).

28.484 Phil. 62 (2004).

29.Id. at 71.

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