Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 15 2003.

G.R. Nos. 141660-64 (People of the Philippines vs. SPO2 Cesar Fortuna, et al.)

G.R. No. 142065 (Leonido Lumanog, et al. vs. Hon. Jaime Salazar, Jr. and People of the Philippines.)

Records show that after the denial of the motion for reconsideration of the Decision of this Court in Lumanog v. Salazar[1] (G.R. No. 142065) on November 20, 2001, we accepted the appeal (G.R. Nos. 141660-64) and ordered the Clerk of Court to send notices to the respective counsels of the appellants for the filing of the appellant’s brief.[2] On March 7, 2002, counsel for appellant Lenido Lumanog filed a Manifestation and motion, informing this Court of his intent to file a motion for New Trial and Related Relief.[3] On April 26, 2002, instead of filing a brief, counsel for appellant Lenido Lumanog filed a Motion for New Trial and Related Relief.[4] On May 28, 2002, we noted the March 5, 2002 Motion and Manifestation of appellant Lenido Lumanod and denied the motion for new trial.[5] On July 19, 2002,[6] counsel for appellant Lenido Lumanog wrote a letter pointing out that the resolution of May 28, 2002 could have denied the April 26, 2002 Motion for New Trial and Related Relief, because it had not yet been calendared for agenda. Counsel for appellant Lenido Lumanog reasoned that from the aforementioned resolution, the denial pertained to the March 5, 2002 Motion and Manifestation which was intended to inform the Court of appellant Lenido Lumanog’s intention to file a motion for New Trial. Thus, the May 28, 2002 Resolution could not have denied the Motion for New Trial which, as of the said date, had not yet been calendared. On September 17, 2002, we denied the April 26, 2002 motion for New Trial, considering that the first motion had already been denied; the July 19, 2002 letter of Atty. Soliman M. Santos, counsel for death convict Lumanog was merely noted.[7] On October 14, 2002, appellant Lenido Lumanog filed a urgent motion for urgent motion for reconsideration of the September 17, 2002 Resolution.[8] On November 28, 2002, appellant Lenido Lumanog filed a supplement to the urgent motion for reconsideration of the September 17, 2002 Resolution.[9] On January 14, 2003, we noted without action the Urgent Motion for Reconsideration of the September 17, 2002 Resolution, on the ground that the said motion (motion for new trial) had been resolved by the May 28, 2002 Resolution.[10] On January 16, 2003, counsel for appellants Lenido Lumanog and Augusto Santos [11] filed an Urgent Motion for Action on Urgent Motion for Reconsideration.[12] On February 11, 2003 we need without action said motion in view of our January 14, 2003 Resolution.[13] Similarly, the letter filed by counsel of appellants Lenido Lumanog and Augusto Santos was noted without action in the February 18, 2003 Resolution in view of our February 11, 2003 Resolution.[14]

On May 5, 2003,, counsel for appellant Lenido Lumanog filed a Very Urgent Motion for Homestay on Recognizance alleging that appellant Lumanog had just undergone a critical kidney transplant operation. He prayed that for health reasons, he be allowed not to return to the New Bilibid Prison but to go on Homestay on recognizance under respectable benefactors (i.e., Spouses Angelo and June Keithley Castro, Ret. Brig. Gen. Federico E. Ruiz and/or Sec. Eduardo R. Ermita).The Heirs of Abadilla filed their Opposition thereto. This was followed by an Addendum to the Very Urgent Motion for Homestay and a Reply to the Opposition dated 26 June 2003 filed by counsel for appellant Lumanog, and a Second addendum dated July 11, 2003. The OSG has also foiled its Comment as required by the Resolution of this Court dated June 10, 2003, where it stated that:

6. It should be stressed that the appellant was convicted of murder in the Quezon City Regional Trial Court, Branch 103, and was sentenced with the Supreme penalty of death. Sections 5 and 7 of Administrative Circular No. 2-92 dated January 20, 1992 (Rule 114 of the Rules of Court) proscribe the grant of bail to persons convicted of capital offense in the Regional Trial Court. An accused who is convicted of murder is no longer entitled to bail since the evidence of guilt is strong. [People v. Divina, 221 SCRA 209 (1993); People v. Fortes 223 SCRA 619 (1993); Padilla v. Court of Appeals, 260 SCRA 155 (1996)]. Thus, appellant Lumanog, having been convicted of a capital offense is not entitled to bail.

7. Neither can be released on recognizance either to Spouses Angelo Castro, Jr., and June Keithley Castro, Bgen. Federico Ruiz or to Sec. Eduardo Ermita. Recognizance is an obligation on record, entered into before some court of magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial [People v. Abner, 87 Phil. 566]. Clearly, this form of bail is applicable only when the case is in its trial stage. Since the case is on automatic review pending before this Honorable Court, recognizance is no longer available to him. To grant him release on recognizance is tantamount to granting him bail, which is contradictory to established rules and jurisprudence.

8. This Honorable Court has ruled in that release on recognizance of any person under detention may be ordered only in the following cases:

a. When the offense charges is in violation of an ordinance, a light felony, or a criminal offense, the imposable penalty of which does not exceed six (6) months imprisonment and/or P2,000.00 fine, under the circumstances in R.A No. 6036;

b. Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case, the court in its discretion may allow his release on his own recognizance;

c. Where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and

d. In case of youthful offender held for physical and mental examination, trial or appeal, if he is unable to furnish bail and under circumstances envisaged in P.D. No. 603, as amended (Article 191) [Espiritu v. Jovellanos, 280 SCRA 579 (1997)].

Appellant Lumanog’s case does not fall under any of the cases cited.

9. The clinical Abstract issue by Dr. Erwin F. Villar and the Discharge Summary issued by Dr. Caesar E. Casanova (Annexes “A” and “B” of the Very Urgent Motion for Homestay recognizance) are reports on the condition of appellant Lumanog before and after surgery and after. Only Annex “B” has a portion instructing appellant Lumanog to “avoid crowded places to prevent infection (patient is immunocompromised).” Nothing in these annexes shows that appellant should be restricted/confined in a place outside NBP. The NBP hospital is adequately equipped to meet the requirements needed by appellant to recover.

10. The newspaper clippings also do not have probative value. They are hearsay and have no evidentiary value. [People v. Angel, 97 SCRA 795 (1980); Feria v. CA, 325 SCRA 526 (2000)]. Appellant Lumanog fears of infection of the deadly Severe Acute Respiratory Sysdrome (SARS), based on a newspaper clipping (Annex “D” of the Very Urgent Motion for Homestay on Recognizance). The country is already SARS free and the government has taken steps to cub the outbreak of the killer disease in the country, NBP included.

11. Returning appellant Lumanog to the NBP is not a gross irreversible violation of his fundamental constitutional and human rights to life and due process. It is the mandate of the law that if an accused is convicted of a capital offense, he loses his right to bail. If the law is clear and free from doubt, it is sworn duty of the court to apply it without fear or favor, to follow its mandate, and not to tamper with it [Go v. Anti-Chinese Leaugue of the Philippines, 84 Phil. 468] who may be affected, even if it may be harsh or erroneous [Pascal v. Pascal-Bautista, 207 SCRA 5561 1992)].

We find the opposition of the OSG well-taken.

IN VIEW OF ALL THE FOREGOING, Atty. Leandro Azarcon, counsel for Augusto Santos; Atty. Arlene G. Lapuz-Ureta, counsel for Cesar Fortuna; Atty. Grenalyn V. Virtuisio, as counsel for Rameses de Jesus; and Atty. Soliman M. Santos, as counsel for Leonido Lumanog, are herein ORDERED to file appellants’ brief within thirty (30) days from receipt hereof.

Appellant Joel de Jesus is ordered to MANIFEST if he desires to engage the services of counsel de parte or for the Court to appoint a counsel de officio ten (10) days from receipt hereof.

The Motion for Homestey or Recognizance filed by appellant Lenido Lumanog is DENIED.

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court

By:

(Sgd.) MA. LUISA D. VILLARAMA

Assistant Clerk of Court

[11] In our January 14, 2003 resolution we noted the November 25, 2002 manifestation of Atty. Soliman M. Santos appearing as co-counsel for appellant Augusto Santos.