FIRST DIVISION
[G.R. No. 238508. June 6, 2018.]
MELINDA O. SAMAR, petitioner, vs. FORMER NINETEENTH DIVISION, COURT OF APPEALS, CEBU CITY, HONORABLE NELSON J. BARTOLOME, in his capacity as PRESIDING JUDGE OF BRANCH 8 OF THE REGIONAL TRIAL COURT OF KALIBO, AKLAN AND THE PEOPLE OF THE PHILIPPINES, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJune 6, 2018which reads as follows:
"G.R. No. 238508 — Melinda O. Samar v. former Nineteenth Division, Court of Appeals, Cebu City, Honorable Nelson J. Bartolome, in his capacity as Presiding Judge of Branch 8 of the Regional Trial Court of Kalibo, Aklan and the People of the Philippines
After a judicious review of the allegations in the instant Petition for Certiorari with prayer for issuance of temporary restraining order and/or writ of preliminary injunction, this Court resolves to DISMISS the same for: (1) lack proof of service on the Court of Appeals of a copy of the Petition for Certiorari in violation of Section 3, Rule 46 in relation to Section 65 of the Rules of Court; (2) failure to notarize the verified declaration of the Petition for Certiorari also in violation of Section 3, Rule 46 in relation to Section 65 of the Rules of Court; and (3) being the wrong remedy. TIADCc
Certiorari under Rule 65 of the Rules of Court is an original action directed against an interlocutory order of the lower court prior to an appeal from the judgment or where there is no appeal or any plain, speedy or adequate remedy. 1 These circumstances do not exist in this case. Petitioner Melinda O. Samar should have filed a Petition for Review on Certiorari under Rule 45 of the Rules of Court, which is an appeal from the decision, final order or resolution of the Court of Appeals (CA) since she was assailing its Resolution dated August 31, 2016 which dismissed her Petition for Certiorari for being a wrong remedy. An action for Certiorari will not be entertained where appeal is available to the aggrieved party. 2
However, there is a need to modify the penalty imposed on petitioner due to the passage of Republic Act No. (RA) 10951 entitled "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 Amending for Purpose Act No. 3815 Otherwise Known as the 'Revised Penal Code as amended.'" The penalty imposed by the RTC on petitioner is imprisonment of 2 years of prision correccional, as minimum, to 20 years of reclusion temporal, as maximum. Under Section 85 of RA 10951, the penalty for estafa is prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is P2,400,000.00 but does not exceed P4,400,000.00, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P2,000,000.00. However, the total penalty shall not exceed 20 years and shall be termed prision mayor or reclusion temporal, as the case may be. Thus, for committing estafa involving the amount of P11,063,587.20, the penalty is within the range of the maximum period of prision correccional in its maximum period to prision mayor in its minimum period, which is 6 years, 8 months and 21 days to 8 years. Since the total amount defrauded exceeds the amount of P4,400,000.00 by P6,663,587.20 there is an additional penalty of 3 years, which when added to 8 years would total 11 years of prision mayor. cSEDTC
On the other hand, the minimum of the indeterminate sentence should be within the range of the penalty next lower to that prescribed for the crime committed. The penalty next lower to prision correccional in its maximum period to prision mayor in its minimum period is prision correccional in its minimum and medium periods, which has a range of 6 months and 1 day to 4 years and 2 months. Thus, the indeterminate penalty should be modified to a prison term of 2 years of prision correccional, as minimum, to 11 years of prision mayor, as maximum.
An interest rate of 6% per annum must be awarded on the amount of P11,063,587.20 as indemnity and costs. It shall earn interest from date of finality of the CA Decision until full payment.
ACCORDINGLY, this Court resolves to DISMISS the Petition for Certiorari. However, there must be a modification of the indeterminate penalty imposed on petitioner Melinda O. Samar to a prison term of 2 years of prision correccional, as minimum, to 11 years of prision mayor, as maximum.
SO ORDERED." Leonardo-de Castro, J., designated as Acting Chairperson of the First Division per Special Order No. 2559 dated May 11, 2018; Tijam, J., on official leave; Gesmundo, J., designated as Acting Member per Special Order No. 2560 dated May 11, 2018.
Very truly yours,
(SGD.) LIBRADA C. BUENAActing Division Clerk of Court
Footnotes
1. Feria, Jose Y. and Noche, Maria Concepcion S., "Civil Procedure Annotated, Vol. 2," 2013 Ed., p. 371.
2.Sps. Leynes v. Former Tenth Division of the Court of Appeals, 655 Phil. 25, 43 (2011).