SECOND DIVISION
[G.R. No. 213870. July 27, 2016.]
YANG KUONG YONG, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 27 July 2016 which reads as follows:
"G.R. No. 213870 (YANG KUONG YONG, petitioner v. PEOPLE OF THE PHILIPPINES, respondents).
This is a motion for reconsideration of our November 17, 2014 resolution denying Yang Kuong Yong's (Yang) petition for certiorariof the Court of Appeals' (CA) decision dismissing his appeal in CA-G.R. CR No. 01043.
Cho Kyu Seak (Cho) filed a criminal complaint against Yang and one Lee Kyong Hon before the Municipal Trial Court in Cities, Mandaue City (MTCC), for serious physical injuries and grave threats.
After due proceedings, the MTCC found Yang and his co-accused guilty beyond reasonable doubt on January 31, 2008.
Yang appealed the verdict to the Regional Trial Court (RTC) of Mandaue City. However, the RTC dismissed the appeal on May 30, 2008, because of Yang's failure to file his appeal memorandum. He moved for reconsideration, which the RTC denied.
Yang filed a petition for review before the CA. Citing Rule 40, Section 7 of the Rules of Court, 1 the CA denied the petition and upheld the RTC's dismissal of his appeal. The CA likewise denied his motion for reconsideration.
Thus, Yang filed the present petition for certiorari claiming that the CA committed grave abuse of discretion in denying his appeal. He argued: (1) that the CA should have looked into the merits of his case, rather than hastily dismissing his petition for review; and (2) that the CA should have accorded probative value to Cho's affidavit of recantation.
We dismissed the petition because the CA did not commit "grave abuse of discretion." We also refused to give any probative value to the affidavit of recantation.
The Motion for Reconsideration
Yang insists that the CA gravely abused its discretion because: (1) it should have applied Rule 122 instead of Rule 40 this being a criminal case; and (2) Cho's affidavit of recantation proves that it was Yang's co-accused, not Yang, who committed the crime.
Our Ruling
We do not find the motion meritorious.
The errors assigned in Yang's petition and in his motion for reconsideration are errors of law, not errors of jurisdiction. While the RTC and the CA may have erred in applying the stricter provisions of Rule 40, Section 7 instead of Rule 122, Section 9, 2 this does not amount to grave abuse of discretion.
Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an evasion of positive duty or a virtual refusal to act at all in contemplation of the law. 3 It is present when power is exercised in a despotic manner by reason, for instance, of passion and hostility. 4 None of these are attendant in the CA's denial of Yang's petition for review.
Moreover, Yang could have filed a petition for review on certiorari under Rule 45. The availability of an appeal precludes resort to certiorari, even if the ascribed error was lack/excess of jurisdiction or grave abuse of discretion. 5 Certiorari is an extraordinary remedy of last resort; it is only available when there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. EcTCAD
WHEREFORE, we DENY the motion with FINALITY, no compelling reason having been adduced to warrant the reconsideration sought.
No further pleadings or motions shall be entertained in this case. Let the entry of final judgment be effected in due course.
SO ORDERED.
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1. SEC. 7.Procedure in the Regional Trial Court. —
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(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.
2. Section 9. Appeal to the Regional Trial Courts. —
xxx xxx xxx
(c) Within fifteen (15) days from receipt of the said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed.
3. Commission of Internal Revenue v. Court of Appeals, 327 Phil. 1, 41 (1996); Salma v. Hon. Miro, 541 Phil. 685, 686 (2007); Ligeralde v. Patalinghug, 632 Phil. 326, 330 (2010).
4. Id.
5. Malayang Manggagawa ng Stayfast Phils., Inc. v. NLRC, G.R. No. 155306, August 28, 2013, 704 SCRA 24, 35-36.