MARIA CRUZ y GONZAGA and DAVID CRUZ y GONZAGA, petitioners, vs. COURT OF APPEALS, SUPERINTENDENT OF THE NATIONAL PENITENTIARY, DIRECTOR OF THE BUREAU OF CORRECTIONS, respondents. Misoedp

This is a consolidated petition for certiorari and habeas corpus. The petition for certiorari was filed by David Cruz y Gonzaga questioning the Resolution of the Court of Appeals in CA-G.R. CR No. 16944 which dismissed his appeal from the judgment of conviction of the Regional Trial Court, Branch 167, Pasig, Metro Manila for failure to file appellant's brief. The petition for habeas corpus was filed by David Cruz's mother, Maria Cruz y Gonzaga, against respondents Superintendent of the National Penitentiary and the Director of the Bureau of Corrections.1 [Please see Petition, pp. 2-3, Rollo, pp. 4-5; see also Comment of the Solicitor General, pp. 1-2, Rollo, pp. 27-18.]

Petitioner David Cruz y Gonzaga was charged before the Regional Trial Court, Branch 167, Pasig, Metro Manila with a violation of Republic Act (R.A.) No. 6425, the Dangerous Drugs Act of 1972. He allegedly sold to another person on April 11, 1992 dried marijuana fruiting tops weighing 2.70 grams. On September 23, 1993, the trial court found David Cruz guilty of the crime charged and sentenced him to suffer life imprisonment with all the accessory penalties of the law and to pay a fine of P20,000.00 and the costs.

David Cruz seasonably appealed to this Court. The First Division accepted his appeal and the case was docketed as G.R. No. 113390. Meanwhile, David Cruz was transferred from the Municipal Jail to the New Bilibid Prisons. His counsel of record, Atty. Carmelo L. Arcilla, was notified and required to file the appellant's brief within thirty (30) days from notice. The notice was, however, returned unserved.

On October 3, 1994, we issued a Resolution referring the appeal to the Court of Appeals in view of the effectivity of Republic Act No. 7659 and the promulgation of the case of People v. Martin Simon y Sunga.2 [G.R. No. 93028, promulgated on July 29, 1994, 234 SCRA 555.] We noted that as the quantity of the marijuana involved in the case was less than 750 grams, the imposable penalty on the appellant was not life imprisonment but one within the range of prision correccional to reclusion temporal, in accordance with the People v. Simon y Sunga ruling.

A second notice to file appellant's brief was sent to the new address of David Cruz's counsel, as furnished by Cruz. The notice was again returned unserved.

On September 19, 1995, David Cruz filed with us an "Urgent Motion to Withdraw Appeal." Attached to the motion was the Indorsement of Assistant Director Jesus P. Villanueva, Bureau of Corrections, stating that the legal effects of the Motion were adequately explained to Cruz. The motion was referred to the Court of Appeals. Misedp

On October 24, 1995, the Court of Appeals, Seventh Division, issued a Resolution holding in abeyance its resolution on the motion to withdraw appeal "until the situation is explained to him by the Director, National [sic] Bilibid Prison." The Director was ordered to submit a written report, together with the reply of David Cruz, within ten (10) days from receipt thereof. In the same Resolution, the Court of Appeals also noted that:

x....x....x.

No report was submitted by the Director, New Bilibid Prisons.4 [Petition, p. 4, Rollo, p. 6.]

A third notice to file appellant's brief was sent to David Cruz's counsel which he received on June 8, 1996. Despite this receipt, no appellant's brief was filed.

On September 18, 1996, the Court of Appeals issued another Resolution declaring David Cruz's appeal as abandoned and dismissed the same. The dispositive portion of this Resolution reads as follows:

This Resolution became final and executory on October 14, 1996. Judgment was entered on April 1, 1997.6 [Entry of Judgment, Annex "A" to the Petition, Rollo, p. 15.] In 1998, petitioner Maria Cruz sought the assistance of the Office of Legal Aid of the University of the Philippines College of Law. Hence, this petition.

Petitioners claim that:

The petition for certiorari must be dismissed.

Respondent Court of Appeals did not err in declaring the appeal of petitioner David Cruz as abandoned and dismissed. Section 8 of Rule 124 of the 1985 Rules on Criminal Procedure, as amended, provides:

An appeal may be dismissed by the Court of Appeals, upon motion of the appellee or upon the court's own motion, if the appellant fails to file his brief within the prescribed time. The only exception is when the appellant is represented by counsel de officio.

Petitioner David Cruz was represented not by counsel de officio, but by counsel of his own choice. His lawyer, Atty. Carmelo Arcilla, was counsel de parte before the trial court, before this Court on appeal, and before the Court of Appeals. There is nothing in the records that would show that Atty. Arcilla withdrew his representation of petitioner. On the contrary, the notice from the Court of Appeals requiring the filing of the appellant's brief was received by Atty. Arcilla. And despite this receipt, still no appellant's brief was filed. It was more than three (3) months later that the appellate court issued the questioned Resolution. By dismissing David Cruz's appeal, the Court of Appeals acted within its discretion.

A new trial to determine his penalty cannot be granted petitioner. A motion for new trial may be granted by the Court of Appeals only on the ground of newly discovered evidence material to the accused's defense. This is clear from Section 14, Rule 124 of the 1985 Rules on Criminal Procedure, to wit:

Maria Cruz's petition for habeas corpus, on the other hand, must be granted. Her son, David, was tried and convicted by the trial court for violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. He was convicted on September 27, 1993 and sentenced to life imprisonment and its accessory penalties. He was committed to the National Penitentiary on October 13, 1993. On December 31, 1993, Republic Act (R.A.) No. 769 took effect. This law amended provisions of several penal laws, including the Dangerous Drugs Act of 1972.

Before R. A. No. 7659, Article II, Section 4 of the Dangerous Drugs Act of 1972 provided:

With the effectivity of R. A. No. 7659, Section 4, Article II now reads:

R.A. No. 7659 also added the following provision:

The penalty for the illegal sale of marijuana under the old law was "life imprisonment to death." Under R.A. 7659, the penalty depended on the quantity of the drug. The sale of "750 grams or more of Indian hemp or marijuana" became punishable by reclusion perpetua, to death.9 [Section 13 and Paragraph 1, Section 17, R.A. 7659.] The penalty for the sale of less than 750 grams of marijuana was reduced to a range "from prision correccional to reclusion perpetua, depending upon the quantity" of the drug.

In the 1994 case of People v. Simon y Sunga,10 [234 SCRA 555 (1994)] we held that for drugs with quantities weighing 750 grams or more, and for drugs with quantities weighing below 750 grams, reclusion perpetua could not be imposed twice.11 [Id., at 571-572.] The penalty of "prision correccional" to reclusion perpetua" for drug offenses where the quantity involved is less than those enumerated in the first paragraph of Section 17 of R.A. 7659 was construed as "prision correccional to reclusion temporal." This was the range of the imposable penalty for drugs weighing less than 750 grams and the proper penalty depended on the quantity of the drug involved. If the drug weighs less than 250 grams, the penalty to be imposed is prision correctional; from 250 grams to 499 grams, prision mayor; and from 500 grams to 749 grams, reclusion temporal.12 [Id., at 573; see also People v. Caco, 269 SCRA 271, 273 (1997)]

In the instant case, the amount of marijuana for which David Cruz was convicted is 2.70 grams. The imposable penalty for this amount under the Simon ruling is prision correctional which has a duration of six (6) months and one (1) day to six (6) years. Presently, David Cruz has already served six (6) years and three (3) months of his sentence which is way beyond the last day of prision correccional. The continued detention of Cruz at, the National Penitentiary has been admitted by the Solicitor General as already illegal.13 [Comment of the Solicitor General, pp. 13-14, Rollo, pp. 39-40.] David Cruz should therefore be released from prison without further delay. Courtx

An application for the writ of habeas corpus is made upon verified petition setting forth: (1) that the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) the officer or name of the person by whom he is imprisoned or restrained; (3) the place where he is imprisoned or restrained of his liberty; and (4) a copy of the commitment or cause of detention of such person.14 [Section 3, Rule 102, Revised Rules of Court.] The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty.15 [Ordonez v. Vinarao, 239 SCRA 114, 115 (1994); Section 1, Rule 102, Revised Rules of Court.]

IN VIEW WHEREOF, the petition is GRANTED. Let a writ of habeas corpus issue immediately. The Director, Bureau of Corrections, is commanded to forthwith execute the writ for the discharge of DAVID CRUZ y GONZAGA from confinement and RELEASE him, unless he is being detained for some other lawful cause, and to make due return of the writ. With costs de officio.

FURTHER, in view of the Court of Appeals' dismissal of petitioner's appeal on the ground of abandonment for failure to file appellant's brief, Atty. Carmelo L. Arcilla is hereby ordered to explain within fifteen (l5) days from receipt of this decision why no disciplinary action should be taken against him by this Court.

SO ORDERED. Edpsc

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Yñares-Santiago, JJ., concur.