BUENA, J.: Esmsc

This is a petition for review on certiorari to set aside the Decision rendered by the Court of Appeals on November 14, 1997 in CA-G.R. SP No. 44428 which affirmed the order of the Regional Trial Court of Malolos, Bulacan, denying petitioner’s motion to dismiss Crim. Case No. 645-M-95 for violation of R.A. 6425 invoking his right to a speedy trial.

On August 8, 1995, the petitioner was arraigned and pleaded not guilty to the charge. Thereafter, the initial trial of the case was set on September 7, 1995 which, however, was reset 11 times for the following reasons, viz.:

Forthwith, petitioner filed a "Motion to Dismiss" the case invoking his right to a speedy trial. The prosecution failed to file its Comment within the period granted it. In the interim, the building housing the court was burned on October 14, 1996 and the court records had to be reconstituted. Upon the trial court’s order issued on February 13, 1997, the Prosecution filed its Comment to the Motion to Dismiss, to which the petitioner filed its Reply, followed by the prosecution’s Rejoinder and petitioner’s Sur-Rejoinder. On February 26, 1997, the trial court issued an Order denying petitioner’s motion to dismiss. On May 2, 1997, the trial court denied petitioner’s motion for reconsideration.

Petitioner filed with the Court of Appeals a petition for certiorari and mandamus praying that the writs of certiorari and mandamus be granted and that Crim. Case No. 645-M-95 of the RTC of Malolos, Bulacan be ordered dismissed for failure of the prosecution to prove its case despite eleven (11) postponements spread over an unreasonably long period of one year and three months in violation of the right of petitioner, as an accused, to speedy trial. The Court of Appeals dismissed the petition. The pertinent portions of the Decision read: lex

Hence, this petition.

Petitioner avers that "(t)he manifestly unreasonable lengthy period the proceedings had dragged on with the charge remaining unproved by reason of its unpreparedness for lack of witnesses demonstrably and eloquently attests that there has been ‘vexatious, capricious and oppressive delay,’ which is anathema to the right of an accused to speedy trial with its salutary objective ‘to assure that an innocent person may be freed from anxiety and expense of a court litigation, or of otherwise having his guilt determined within the shortest time compatible with the presentation and consideration of whatever legitimate defense he may interpose.’" Esmmis

Petitioner further contends that it is the duty of the prosecution to be ready at all times to present its case on the dates of the scheduled hearing sweeping aside all reasons adduced by the prosecution as unjustifiable.

The petition is without merit.

First, not all the eleven postponements were made at the instance of the prosecution. The hearing on June 11, 1996 was reset because the petitioner was without counsel, and on July 29, 1996, the hearing was reset because petitioner’s newly engaged counsel was not available.

Second, contrary to petitioner’s averment, the reasons for the prosecution’s postponements were reasonable and were not intended merely to delay the proceedings of the case. The hearing of the case had to be postponed several times because there was no proof that the prosecution witnesses were duly served with subpoena. It would be unjust to pounce on the absence of the witnesses as a basis for dismissing the case when there was a valid excuse for their absence, that is, there was no proof that they were duly served with subpoena. The other reasons for the postponement of the hearing, such as the re-raffling of the case to another branch and the fire which razed the building housing the court and its records, are circumstances beyond the control of the prosecution. Es-mso

The right of an accused to a speedy trial is guaranteed to him by the constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly prosecuting criminals. It secures rights to an accused but it does not preclude the rights of the State to seek justice. Both the State and the accused are entitled to due process.

Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial. The right to speedy trial allows reasonable continuance so as not to deprive the prosecution its day in court.1 [People vs. Leviste, 255 SCRA 238.]

As aptly held by the Court of Appeals,

The Court finds that there is no basis for petitioner’s allegation that his constitutional right to speedy trial has been violated. One must take into account that a trial is always subject to reasonable delays and postponements, and in the absence of any showing that the same were capricious, the State should not be deprived of a reasonable opportunity of prosecuting petitioner.

In the recent case of Binay vs. Sandiganbayan, et al.3 [October 1, 1999, G.R. Nos. 120681-83.] we held that the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings 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 … A mere mathematical reckoning of the time involved, therefore, would not be sufficient.

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed reversible error.

Mendoza, (Acting Chairman), and De Leon, JJ., concur.

Bellosillo, (Chairman), J., on leave.11/11/99 9:58 AM

Quisumbing, J., on official business.