FIRST DIVISION
[G.R. No. 227892. January 24, 2018.]
ALBERT BALLICUD, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJanuary 24, 2018which reads as follows: HTcADC
"G.R. No. 227892 (Albert Ballicud v. People of the Philippines). — Petitioner's motion for an extension of 30 days within which to file a petition for review on certiorari, counted from the expiration of the reglementary period, is GRANTED.
The Court further resolves to DENY the Petition for Review. Petitioner failed to show that in dismissing the appeal, the Court of Appeals (CA) had committed reversible error warranting the exercise of this Court's discretionary appellate jurisdiction.
It is a long-settled rule that factual findings of the trial court are generally upheld when affirmed by the CA. 1 In any case, all the elements of the crime of estafa under Article 315, par. 2 (a) are clearly present in the case. 2 First, petitioner made it appear that he was a licensed civil engineer who had the capacity to undertake the construction of her house. Second, this representation was made prior to the execution of their contract for the construction of the building. Relying on his assurances, private complainant Victoria Dietz (Dietz) parted with her money. In the end, her house was left unfinished, with petitioner nowhere to be found, thereby causing the former damage and prejudice.
Nevertheless, we modify the imposed penalty of imprisonment in line with Republic Act No. 10951, 3 respecting the settled rule on the retroactive effectivity of laws, as the new penalties are favorable to the accused. 4 Considering that the trial court awarded P582,437.08 as actual damages, the pertinent provision of the law states:
SECTION 85. Article 315 of the same Act, as amended by Republic Act No. 4885, Presidential Decree No. 1689, and Presidential Decree No. 818, is hereby further amended to read as follows:
ART. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
xxx xxx xxx
3rd. The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period, if such amount is over Forty thousand pesos (P40,000) but does not exceed One million two hundred thousand pesos (P1,200,000). aScITE
Based on the foregoing, the penalty for estafa under Article 315 of Revised Penal Code, as amended, is arresto mayor in its maximum period (four months and one day to six months) to prision correccional in its minimum period (six months and one day to two years and four months). There being no aggravating or mitigating circumstance, the penalty to be imposed shall be in its medium period, consisting of one year and one day up to one year and eight months. Petitioner is also entitled to a minimum term, to be taken from the penalty next lower in degree, in accordance with the Indeterminate Sentence Law. 5
Consequently, the CA Decision dated 31 May 2016 and the Resolution dated 18 October 2016 in CA-G.R. CR 35350 is AFFIRMED with modification. Accordingly, petitioner Albert Balicud is hereby sentenced to the indeterminate penalty of four (4) months of arresto mayor up to one (1) year and six (6) months of prision correccional. The amount of P582,437.08 awarded as actual damages shall earn an interest rate of 6% per annum from the finality of this resolution until full satisfaction.
The handwritten letter dated April 3, 2017 of Ana A. Yape, for private complainant Victoria Dietz, praying, for reasons stated therein, that the instant case be "substantially justified" and further stating that may the merciful and good Lord guide the Court to a rightful decision/resolution of the case; and the letter dated April 4, 2017 of Ana A. Yape, for private complainant Victoria Dietz, praying, for reasons stated therein, that the Court will reward complainant "the worth of her very hard earned finances and properties as much be relieved of her sufferings, agony and all hardships in our (their) fight for JUSTICE AND VICTIM OF DECEIT," are both NOTED.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court
Footnotes
1.Republic v. Court of Appeals, 402 Phil 498 (2001).
2.Figueroa v. People, G.R. No. 229592 (Notice), 7 June 2017, citing People v. Tibayan, 750 Phil. 910 (2015) states:
The elements of Estafa by means of deceit under this provision are the following: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage.
3. An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based, and the Fines Imposed under the Revised Penal Code, 29 August 2017.
4.Hernan v. Sandiganbayan, G.R. No. 217874, 5 December 2017.
5. Act No. 4103, as amended, Section 1.