8/17/2019 G.R. No.

169253

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Republic of the Philippines

SECOND DIVISION

G.R. No. 169253 February 20, 2013

PACIFICO C. VELASCO, Petitioner,

DECISION

PEREZ, J.:

In this petition for certiorari under Rule 65 of the Rules of Court, petitioner alleges grave abuse of discretion on the
part of the Fifth Division of the Sandiganbayan for issuing the Resolution1 dated 9 June 2005 denying his motion for
reinvestigation and the subsequent Resolution2 dated 15 August 2005, denying his motion for reconsideration in
Criminal Case No. 28097.

The antecedents follow.

Philip Corpus Velasco, then Mayor of the Municipality of Bacarra in Ilocos Norte, filed an Affidavit-Complaint against
his predecessor, petitioner Pacifico C. Velasco, containing the following pertinent allegations:

1. On 21 September 1998, the Sangguniang Bayan of Bacarra passed Resolution No. 98-065 entitled
"RESOLUTION GRANTING AUTHORITY TO THE LOCAL CHIEF EXECUTIVE, HON. PACIFICO C.
VELASCO TO PURCHASE ONE (1) UNIT ROAD GRADER-KOMATZU G-D 31 TO BE USED BY THE
MUNICIPALITY OF BACARRA FOR THE MAINTENANCE OF MUNICIPAL AND BARANGAY
ROADS", the dispositive portion of which reads as follows, to wit:

xxx

"HEREBY RESOLVED to grant authority to the Local Chief Executive, Hon. Pacifico C. Velasco to
purchase one (1) unit of Road Grader-KOMATZU GD 31 to be used by the Municipality of Bacarra for
the maintenance of municipal and barangay roads."

xxx

xxxx

2. Shortly thereafter, on 20 October 1998, a Disbursement Voucher was issued in favor of PACIFICO
C. VELASCO for the amount of ₱670,000.00 "To cash advance the amount of SIX HUNDRED
SEVENTY THOUSAND PESOS (₱670,000.00) for the purchase of one (1) Road Grader to be used by
municipality per L[BP] Check No. 106353 dated 10-13-98. x x x.

3. After the election of May 14, 2001, and after the turn-over, it was found out during the inventory of
municipal properties that the Road Grader was nowhere to be found. x x x.

4. In fact, a Joint Certification was issued by the Office of the Treasurer that there was NO ROAD
GRADER-KOMATZU GD 30 (sic) OWNED BY THE MUNICIPALITY OF BACARRA, x x x.

5. It was discovered later that sometime on 29 December 1998, PACIFICO C. VELASCO allegedly
made a refund of the afore-stated amount to the Municipal Treasurer x x x.

xxxx

8. Despite the alleged refund made by PACIFICO C. VELASCO, he hired the services of a certain
Bernardo J. Bernardo (sic) as Heavy Equipment Operator I, SG-4 on 16 August 2000, x x x.
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9. Despite the alleged refund made by PACIFICO C. VELASCO, several Requests for Pre-Repair
inspections, Job orders and corresponding Disbursement Vouchers were made for "repairs, spare
parts, etc. of a Komatzu GD 30, Road Grader, x x x.

xxxx

17. From the foregoing statement of facts, as supported by documentary evidences, I am accusing
former mayor Pacifico C. Velasco now Provincial Board Member of Ilocos Norte and the Municipal
Treasurer of Bacarra, Ilocos Norte, Lorna S. Dumayag, for violation of the Anti-Graft Law and the
Revised Penal Code as amended for using public funds in the amount of Six Hundred Seventy
Thousand Pesos (₱670,000.00) in the purchase of a Road Grader that [was] subsequently
appropriated by former mayor Pacifico C. Velasco as his personal property.3

In his Counter-Affidavit, petitioner branded the filing of the Complaint as politically motivated. He admitted
requesting for a cash advance from the municipality for the purpose of acquiring the road grader, which was
subsequently utilized by the municipality to repair and maintain roads. When the expected funds from the national
government were not released, petitioner was faced with the problem of liquidating said cash advance. Thus, he
was forced to mortgage the road grader just so he could reimburse the municipality in the sum of ₱670,000.00.
Petitioner justified the need for replacement of spare parts and/or necessary repairs to be paid out of municipal
funds because the municipal government was using the road grader from October 1998 up to the end of his term in
June 2001. He also defended the appointment of Bernardo Bernardino (Bernardino), who was initially employed as
a casual employee and made permanent six (6) months later. According to petitioner, Bernardino was an all-around
heavy equipment operator and was not solely assigned as operator of the subject road grader.4

On 11 December 2002, the Office of the Deputy Ombudsman for Luzon issued a Resolution dismissing the
Complaint for lack of probable cause. Then Acting Mayor Nicomedes C. Dela Cruz (Acting Mayor Dela Cruz) moved
for reconsideration on 15 October 2003. A Motion to Strike Out the Motion for Reconsideration was filed by
petitioner for lack of locus standi.5 In an Order dated 13 February 2004, the Office of the Deputy Ombudsman for
Luzon denied the motion for reconsideration.

However, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), Orlando Casimiro,
pursuant to the authority6 given by Ombudsman Simeon Marcelo, directed the Office of Legal Affairs to review the
case. On 8 July 2004, the Office of Legal Affairs recommended that petitioner be indicted for technical malversation.
The Office of Legal Affairs found that while the Sangguniang Bayan authorized the purchase of a road grader, no
sum was appropriated for its purchase. The source of the funding of the ₱670,000.00 cash advance came from the
municipality’s funds for personal services, which were originally appropriated for salaries of municipal employees.7

Upon receipt of the Memorandum-Resolution, petitioner filed an Omnibus Motion (Motion for Reconsideration with
Prayer to Hold in Abeyance the Filing of Information) citing the failure of the 13 February 2004 Order to consider his
Motion to Strike Out the Motion for Reconsideration filed by Acting Mayor Dela Cruz. Petitioner also argued that not
all elements constitutive of technical malversation were present.

On 16 February 2005, the Office of the Special Prosecutor issued a Memorandum denying the Omnibus Motion. A
revised/modified Information was filed with the Sandiganbayan charging petitioner of the crime of Illegal Use of
Public Funds under Article 220 of the Revised Penal Code, committed, thus:

That on or about 20 October 1998 and sometime prior or subsequent thereto, in the Municipality of Bacarra, Ilocos
Norte, Philippines, within the jurisdiction of this Honorable Court, the accused PACIFICO C. VELASCO, a high-
ranking public official, being then the Mayor of the aforesaid municipality and as such is accountable for public funds
received by or entrusted to him by reason of the duties of his office, while in the performance and taking advantage
of his official and administrative functions, did then and there wilfully, unlawfully and feloniously apply or misapply
the amount of SIX HUNDRED SEVENTY THOUSAND PESOS (₱670,000.00), Philippine Currency, under his
administration to a public use other than that for which such fund was originally appropriated by law or ordinance,
when the accused cash advanced the said amount of SIX HUNDRED SEVENTY THOSUAND PESOS
(₱670,000.00) under Disbursement Voucher No. 101-98-10-037 which amount was appropriated or intended for the
payment of personal services for the municipal employees of the local government of Bacarra, particularly for their
salaries, 13th month pay and other benefits, and utilized the said amount to purchase one (1) unit road grader but
was never recorded as property of the above-named Municipality, and thereafter, accused mortgaged said road
grader to private individuals without authority from the Sangguniang Bayan of Bacarra, Ilocos Norte, thereby
resulting to the damage and embarrassment to the public service as the public was made to believe that the road
grader purchased by the accused was public property for use of the municipal government and its constituent
barangays.8

On 18 March 2005, petitioner moved for a reinvestigation of the case before the Sandiganbayan. According to
petitioner, the Office of the Special Prosecutor, without conducting a preliminary investigation, indicted him not for
the offense of which he was charged but for another offense, hence violating his right to due process.
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On 9 June 2005, the Sandiganbayan issued a Resolution denying the motion for reinvestigation for lack of merit.
The Sandiganbayan found that petitioner had already filed a motion for reconsideration assailing the 8 July 2004
Memorandum. The Sandiganbayan considered the filing of this motion for reconsideration as compliance with the
due process requirement. The Sandiganbayan added that since petitioner had already filed a motion for
reconsideration, he is no longer entitled to move for a second reconsideration pursuant to the Rules of Procedure of
the Office of the Ombudsman which prohibits the filing of such motion. The Sandiganbayan refuted petitioner’s claim
that the offenses charged against him in the complaint are different from the offense charged in the information. The
Sandiganbayan countered that the complaint and the information are based on substantially the same factual
settings except that the respective designations are different.

On 15 August 2005, the Sandiganbayan issued a Resolution denying for lack of merit petitioner's motion for
reconsideration.

Petitioner submits in support of his petition that:

THE RESPONDENT COURT ACTED WITHOUT JURISDICTION OR IN EXCESS THEREOF, OR AT THE VERY
LEAST, GRAVELY ABUSED ITS DISCRETION, IN NOT ORDERING THE REINVESTIGATION OF THE CASE OR,
TO BE MORE PRECISE, A PRELIMINARY INVESTIGATION, AFTER THE OFFICE OF THE SPECIAL
PROSECUTOR FILED AN INFORMATION AGAINST THE HEREIN PETITIONER BASED ON A MOTION FOR
RECONSIDERATION FILED, NOT BY THE COMPLAINANT THEREIN, BUT BY ANOTHER PERSON WHO IS
NOT A PARTY AND THEREFORE, A STRANGER IN THE CASE, AND THEREAFTER, INSTEAD OF MERELY
ACTING ONLY ON THE ISSUES AND GROUNDS RAISED IN THE SAID MOTION, THE OFFICE OF THE
SPECIAL PROSECUTOR, WITHOUT CONDUCTING A PRELIMINARY INVESTIGATION ON THE PURPORTED
OFFENSE OF WHICH THE HEREIN PETITIONER IS NOW INDICTED, ISSUED INSTEAD, THE MEMORANDUM
DATED FEBRUARY 16, 2005, WHICH NOW INDICTS THE HEREIN PETITIONER NOT FOR THE OFFENSE OF
WHICH HE IS CHARGED BUT FOR ANOTHER OFFENSE, THEREBY BLATANTLY VIOLATING THE
PETITIONERS’ SUBSTANTIAL RIGHT TO DUE PROCESS, RENDERING THE RESPONDENT COURT’S
ASSAILED RESOLUTIONS AS NULL AND VOID.9

Petitioner, in the main, assails the denial of his motion for reinvestigation on two (2) grounds: 1) he was denied the
right to file a motion for reconsideration of the 16 February 2005 Office of the Special Prosecutor’s Memorandum,
recommending his indictment for Technical Malversation under Article 220 of the Revised Penal Code, and 2) he
was indicted for an offense that was not originally charged in the criminal complaint against him.10

We briefly review the material facts. A complaint for malversation and violation of the Anti-Graft and Corrupt
Practices Act was filed by then Mayor Philip Velasco against former Mayor Pacifico Velasco, now petitioner. The
Office of the Deputy Ombudsman for Luzon dismissed the complaint for lack of probable cause. Then Acting Mayor
Dela Cruz moved for reconsideration. Petitioner filed a motion to strike out the pleading grounded on the lack of
legal personality of Acting Mayor Dela Cruz to file the motion. The Office of the Deputy Ombudsman for Luzon
eventually denied the motion for reconsideration. However, upon instructions of the Deputy Ombudsman for
MOLEO, the Director of the Office of Chief Legal Counsel, after reviewing the case, recommended the filing of an
Information for Technical Malversation. Petitioner, thus, filed an Omnibus Motion for Reconsideration. The Office of
the Special Prosecutor denied petitioner’s motion and filed the Information for technical malversation before the
Sandiganbayan.

Indeed, the recital of facts reveals that petitioner filed a motion for reconsideration, which he labelled as "Omnibus
Motion (Motion for Reconsideration with Prayer to Hold in Abeyance Filing of Information)" on 15 October 2003. A
perusal of the Omnibus Motion shows that petitioner anchored his motion for reconsideration on two (2) grounds –
first, the legal incapacity of the Vice-Mayor to file a motion for reconsideration of an earlier Order by the Office of the
Deputy Ombudsman for Luzon, dismissing the complaint against petitioner; and second, some elements of the
crime of technical malversation were lacking in the complaint.

Thus, it is incorrect for petitioner to insist that he was denied the right to file a motion for reconsideration of the Order
of the Special Prosecutor. Records prove that it was Special Prosecutor Dennis Villa-Ignacio who deputized the
Deputy Ombudsman for MOLEO to act on the case with finality. Pursuant to this authority, the Deputy Ombudsman
for MOLEO approved the Memorandum-Resolution dated 8 July 2004 indicting petitioner. Thus, this Memorandum-
Resolution proceeds from the authority of the Special Prosecutor and is virtually his own memorandum. So when
petitioner filed an Omnibus Motion for Reconsideration, he was effectively appealing a Memorandum issued by the
Office of the Special Prosecutor. The filing of another motion for reconsideration constitutes a prohibited pleading.
Under Section 7 of the Rules of Procedure of the Office of the Ombudsman, "Only one motion for reconsideration or
reinvestigation of an approved order or resolution shall be allowed, x x x."

In an apparent attempt to mislead, petitioner brings up the alleged incapacity of Acting Mayor Dela Cruz to file a
motion for reconsideration pertaining to the earlier 13 February 2004 Resolution which dismissed the complaint
against him. This argument cannot prosper. The issue has already been resolved. In fact, the Office of the
Ombudsman for Luzon dismissed the complaint against petitioner. The purported legal incapacity of Acting Mayor

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Dela Cruz, therefore, bears no relevance to the indictment on hand. At any rate, Acting Mayor Dela Cruz, in fact, did
possess the legal capacity to file the motion on behalf of the local government unit he represented. Under Section
46 of the Local Government Code, the vice-mayor automatically assumes the powers and duties of the mayor in
case of the latter’s temporary absence, thus:

SEC. 46. Temporary Vacancy in the Office of the Local Chief Executive. - (a) When the governor, city or
municipal Mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons
such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or
municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the
powers and perform the duties and functions of the local chief executive concerned, except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30)
working days.

In fact, Acting Mayor Dela Cruz explained that at that time he filed the motion, Mayor Philip Velasco was "on official
vacation leave and out of the country."11 It is likewise incontrovertible that Mayor Philip Velasco instituted the
complaint in his capacity as then Mayor of Bacarra, Ilocos Norte. Petitioner premises his challenge on legal standing
on the mere failure of the complainant to state in his complaint that he was suing on behalf of the municipality. His
argument is specious. As correctly asserted by Mayor Philip Velasco in his Comment/Opposition to the Motion to
Strike, the property sought to be recovered in the complaint will revert to the municipality and not to him.12

We likewise find no merit in petitioner's contention that he was deprived of due process because while the
accusation in the information was for technical malversation, the crime charged in the complaint was for
malversation and violation of the Anti-Graft and Corrupt Practices Act.

The Court had the occasion to rule on this issue in Pilapil v. Sandiganbayan.13 Petitioner therein was accused of
malversation under Article 217 of the Revised Penal Code before the Ombudsman for failing to deliver the
ambulance that he had received on behalf of the municipality. The complaint for malversation was initially dismissed
for lack of probable cause, but petitioner was later on charged for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act. Petitioner decried lack of due process because there was no preliminary investigation
conducted on the offense of which he was being charged in the Information. The Court held otherwise, thus:

Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of
discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his
complaint or information. The preliminary designation of the offense in the directive to file a counter-affidavit and
affidavits of one's witnesses is not conclusive. Such designation is only a conclusion of law of Deputy Ombudsman
Domingo. The Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation and on the basis of which, he may formulate and designate
the offense and direct the filing of the corresponding information. In fact, even the designation of the offense by the
prosecutor in the information itself has been held inconclusive, to wit:

[t]he real nature of the criminal charge is determined not from the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the
actual recital of facts in the complaint or information . . . it is not the technical name given by the Fiscal appearing in
the title of the information that determines the character of the crime but the facts alleged in the body of the
Information.14

What matters is compliance with due process during the preliminary investigation. That was accorded to petitioner.
Due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the
controversy or an opportunity to move for a reconsideration of the action or ruling complained of.15 As aptly pointed
out by the Court of Appeals, "Mr. Velasco was properly informed of the acts for which he was being investigated and
later charged. He participated actively in the preliminary investigation and in fact, was given ample opportunity to
buttress the allegations against him when he filed his counter-affidavit and submitted evidence on his behalf."16
Upon issuance of the Memorandum

indicting petitioner, petitioner even filed the corresponding motion for reconsideration. Thus, petitioner was given all
1âwphi1

avenues to present his side and refute all allegations against him. He was accorded, and he availed of, due process.

After the preliminary investigation compliant with due process, the Ombudsman, guided by the evidence presented
during the preliminary investigation formulates and designates the offense. The Ombudsman did so in this case.
The formulation of the offense depends on the evidence presented, not on the conclusionary designation in the
complaint.

In all, we see no grave abuse of discretion on the part of the Sandiganbayan in denying the motion for
reinvestigation.

WHEREFORE, the instant petition for certiorari is DISMISSED for lack of merit.
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SO ORDERED.

JOSE PORTUGAL PEREZ

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Footnotes
1 Penned by Associate Justice Ma. Cristina G. Cortez-Estrada with Associate Justices Roland B. Jurado and
Teresita V. Diaz-Baldos, concurring Sandiganbayan rollo, pp. 46-55.

2 Id at 56-57.

3 Id. at 58-60.

4 Records, pp. 43-50.

5 Id. at 162-165.

6 Per Memorandum dated 9 September 2003, delegating the authority of the Ombudsman to the undersigned
to act on this matter with finality. Sandiganbayan rollo, p. 84.
7 Id. at 81-82.

8 Id. at 97-98.

9 Id. at 16.

10 See Sandiganbayan Resolution dated 9 June 2005. Id. at 48.

11 Id. at 69.

12 Records, p. 167.

13 G.R. No. 101978, 7 April 1993, 221 SCRA 349.

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14 Id. at 356-357 (internal citation omitted).

15 Redulla v. Sandiganbayan (First Division), 545 Phil. 711, 723 (2007) citing Roxas v. Hon. Vazquez, 411
Phil. 276, 287 (2001).
16 Sandiganbayan rollo, p. 55.

The Lawphil Project - Arellano Law Foundation

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