SUBJECT: Legal Counseling

STA ANA AND HAYAGAN LAW OFFICES#789 RIZAL ST. MAKATI CITYTELEPHONE NO. 3727648HATOLDELEONLAWOFFICES@YAHOO.COM

July 28, 2014Mrs. Whitney TaisonLegazpi City

Dear Mrs. Taison:Thank you for your letter sent last July 12, 2014 in which you requested legal advice regarding the pending estafa and BP 22 cases filed against your husband and which has already been archived with the courts in Legazpi.My answer to your questions and the reasons for my answers are set below.Q: What to expect if Michael returns to the Philippines for a one month vacation.Answer: On his return to Philippines, the complainants can request for the revival of the cases and the court acquiring jurisdiction can order for issuance of warrant of arrest to Michael. Since Violation of BP 22 and estafa is already archived with the courts of Legazpi, the courts acquiring jurisdiction of the case can,motu proprioor upon motion by any party, order the reinstatement/revival of an archived case and its withdrawal from the archives whenever the same is ready for trial or further proceedings. A criminal case may be archived only if, (a) after the issuance of the warrant of arrest, the accused remains at large for six [6] months from the delivery of the warrant to the proper peace officer. An order archiving the case shall require the peace officer to explain why the accused was not apprehended. The court shall issue an aliasif the original warrant of arrest is returned by the peace officer together with the report orl (b) the court,motu proprioor upon motion of any party, may likewise archive a criminal case when proceedings therein are ordered suspended for an indefinite period when the accused has jumped bail before arraignment and cannot be arrested by his bondsmen. The presiding judge conducts a periodic review of the archived cases.Q: What are the proper actions to take when he returns home.(1): Here are the suggested actions for estafa and BP 22 cases filed separately: For estafa cases with pending warrant of arrest. A lawyer should represent Mr. Taison prior to his homecoming and apply for bail bail then go through all the hearings until it is provisionally dismissed then finally dismissed.SEC. 4.Bail, a matter of right; exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death,reclusion perpetua,or life imprisonment.FOR ESTAFA (ART. 315, 2(d), RPC, as amended by PD 818:1)Where the amount of fraud involved does not exceed P22,000.00, bail shall be computed based on the applicable provisions of the 2000 Bail Bond Guide.2)Where the amount of fraud involved is more thanP22,000.00 but less thanP32,000.00, bail shall be based on the maximum period of the imposable penalty of reclusion temporal multiplied byP2,000.00.3)Where the amount of fraud isP32,000.00 or over in which the imposable penalty is reclusion temporal to reclusion perpetua, bail shall be based on reclusion temporal maximum, pursuant to Par. 2(a) of the 2000 Bail Bond Guide, multiplied byP2,000.00, plus an additional ofP2,000.00 for everyP10,000.00 in excess ofP22,000.00; Provided, however, that the total amount of bail shall not exceedP60,000.00.(Underscoring supplied.)

B. The lawyer of Mr. Taison may file a motion for the consolidation of estafa cases filed in RTC branch 10 and Branch 5 of Legazpi City. The rules of court authorizes thecourt that it may order several actions pending before it to be tried together where they arise fromthe same act, event or transaction,involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantial rights of any of the parties. Consolidation of estafa cases filed against Mr. Taison, when proper, results in the simplification of proceedings which saves time, the resources of the parties and the courts, and a possible major abbreviation of trial. It contributes to the swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy and inexpensive determination of their cases before the courts. Above all, consolidation avoids the possibility of rendering conflicting decisions in two or more cases which would otherwise require a single judgment. C. The lawyer may file for a motion for dismissal due to lack of cause of action by attaching the proof of affidavit of desistance. Estafa is a public crime and an affidavit of desistance may be given such credit only when special circumstances exist engendering doubt on the criminal liabilityofthe accused. Otherwise, without such special circumstances, courts lookwithdisfavoronaffidavit ofretraction consideringthemasexceedingly unreliable. The affidavits of retraction executed by complainants should create doubt on the guilt of accused-appellant.The complainants should not merely allege that they made a mistake and "misunderstoodthecircumstances."However,asidefrom such sweeping statement as "misunderstood the circumstances," details should be given as to how their mistake or misapprehension of circumstances can indicate absence of or at least cast doubt on the guiltof accused-appellant. (2) For BP 22a. The lawyer of Mr. Taison may settle it in mediation proceeding after arraignment. BP 22 cases are now subject to the Revised Rules of Summary Procedure and mediation. If a case falls under Summary Procedure, the judge will not issue a warrant of arrest for the accused, even if the information contains the amount of bail recommended by the fiscal. The accused need not therefore post bail. Upon determining that the case falls under Summary Procedure, the court issues a summons for the private complainant and the accused to appear in court for the arraignment and to submit their affidavits.

During the arraignment and preliminary conference, the judge will ask if the parties (the private complainant and the accused) have submitted their affidavits. The parties may respectively adopt the complaint-affidavit and the counter-affidavit filed during the preliminary investigation. The complainants and the defendants may reach to a compromise agreement in settling the obligation of the defendant.

Q: Whether Michael can still work abroad during the pendency of the cases filed against him.Yes, he can still work abroad but he has to wait for the final dismissal of the cases.I hope I was able to answer all your questions. Please contact me if you have any questions in relation to this advice.

Yours sincerely,SHERMYN M. SANTA ANAAssociate Lawyer

Article 315 of the Revised Penal Code on deceit/swindling (estafa) provides any person who shall defraud another by any of the means mentioned therein shall be punished by the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, 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 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years; providedthat the fraud be committed by any of the following means:1. With unfaithfulness or abuse of confidence, namely:X x x.(b) Bymisappropriatingor converting, to the prejudice of another,money, goods, or any other personalproperty received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.2. By means of any of the followingfalse pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:(a) By using fictitious name, orfalsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.X x x.(a)By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offendedparty may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty.(b)By post-dating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by Republic Act No. 4885, approved June 17, 1967.)Paragraph 2(d), Article 315 of the Revised Penal Code provides:

ART. 315.Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow x x x:

x x x x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

x x x x

(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall beprima facieevidence of deceit constituting false pretense or fraudulent act.

According to the Court, the elements of estafa under paragraph 2(d), Article 315 of the Revised Penal Code are: (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to the payee.[6]

your best remedy is to file bail then go through all the hearings until it is provisionally dismissed then finally dismissed after 1-2 years because no complainant appeared.Mr. Michael theat-large accused is a foreigner, the following documents are required to be submitted to the courtto be released on bail:8.1.Motion To Post Bail.It will beset for hearingby the court.8.2.Sketch of your current residence. It must besigned by you. It must also besigned and sealed by the Brgy. Chairman.8.3.Barangay Clearance or barangay Certificate of residency.8.4.Affidavit of undertakingthat you will attend all court hearings. Our law office can do this for you.9.According to the resolution of the fiscal, the amount involved isP350,000.00. The date of commission of the alleged crime was xxx. The complainant is the deceased xxx.10.Included in the attached records is theSpecial Power of Attorneyof the 2 children of the deceased xxx.

If you wish to hire our law office to be your defense counsel, please set an appointment(a) to discuss the case and (b) discuss our professional fees. Thank you.

11.The accused is very much willing, able and ready to post a BAIL BOND for his temporary liberty so that he could forthwith face the trial of this case and clear his good name as a family man and a businessman.

12.However, due to theeconomic difficulties being face by his business (xxx trading), and considering, further, that the Accused isnot a person of notorious criminal record, he respectfully invokes thekind and compassionate indulgence of the Court to reduce his bailfrom by the amount of P30,000.00. that is, from the original recommended amount of P60,000.00 to thereduced amount of P30,0000.00.He is willing to post a CASH BOND, for the purpose to facilitate the processing of his Order of Release, in the said requested reduced amount of P30,000.00.

13.For the above purpose, there is an urgent need for an Order immediately REVIVING the instant case from the inactive Archives of the Court so that the Court could immediately calendar the case and act on the omnibus motion of the Accused to post the requestedreduced cash bond of P30,000.00and, further, so that the instant case could forthwith undergo the usual judicial processes ofarraignment, mediation, pretrial, and trial properto clear his good name and reputation as a family man and a businessman.

14.This motion is VERIFIED to serve as theAffidavit of Meritof the Accused in explaining the factual matters narrated alleged above.

WHEREFORE, in the interest of justice, it is respectfully prayed that:

1.The instant case be immediately REVIVED from the inactive archives of the Court;

2.The Accused be ALLOWED TO POST BAIL; and that

3.Leave of Court be granted allowing the REDUCTION of the recommended bailfrom P60,000.00 to P30,000.00; and

4.The ARRAIGNMENT of the instant case be forthwith scheduled upon posting by the Accused of the reduced cash bond of P30,000.00 as request above.

FURTHER, the Accused respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.