SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

*
G.R. No. 173421. December 14, 2006.
1
OSCAR Z. BENARES, petitioner, vs. JOSEPHINE LIM,
respondent.

Criminal Law; Double Jeopardy; Requisites; A dismissal with

the express consent or upon motion of the accused does not result in
double jeopardy, except in two instances, to wit·(1) the dismissal is
based on insufficiency of evidence or (2) the case is dismissed for
violation of the accusedÊs right to speedy trial.·Double jeopardy
attaches only (1) upon a valid indictment, (2) before a competent

_______________

* FIRST DIVISION.
1 Sometimes referred to as Beñares or Bernares in the Records.

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VOL. 511, DECEMBER 14, 2006 101

Benares vs. Lim

court, (3) after arraignment, (4) when a valid plea has been entered,
and (5) when the defendant was convicted or acquitted, or the case
was dismissed or otherwise terminated without the express consent
of the accused. In the instant case, there is no question as to the
presence of the first four elements. As to the last element, there was
yet no conviction, nor an acquittal on the ground that petitionerÊs
guilt has not been proven beyond reasonable doubt, but the
dismissal of the case was based on failure to prosecute. A dismissal
with the express consent or upon motion of the accused does not

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

result in double jeopardy, except in two instances, to wit: (1) the

dismissal is based on insufficiency of evidence or (2) the case is
dismissed for violation of the accusedÊs right to speedy trial.

Same; Same; Speedy Disposition of Cases; Delay is not a mere

mathematical computation of the time involved·each case must be
decided upon the facts peculiar to it.·Delay is not a mere
mathematical computation of the time involved. Each case must be
decided upon the facts peculiar to it. The following factors must be
considered and balanced: the length of the delay, the reasons for
such delay, the assertion or failure to assert such right by the
accused, and the prejudice caused by the delay. In the instant case,
the totality of the circumstances excuses the delay occasioned by
the late filing of the prosecutionÊs formal offer of evidence. Since the
delay was not vexatious or oppressive, it follows that petitionerÊs
right to speedy trial was not violated, consequently he cannot
properly invoke his right against double jeopardy.

Same; Same; Same; Criminal Procedure; Formal Offer of

Exhibits; Failure of the prosecution to offer its exhibits is not a
ground to dismiss the case where, even without any documentary
exhibits, the prosecution could still prove its case through the
testimonies of its witnesses.·Neither can petitioner rely on the
doctrine that when a judge dismisses a case for failure to prosecute,
the termination amounts to an acquittal as the prosecution will fail
to prove the case when the time therefor comes. In the instant case,
testimonial evidence were presented against petitioner. Thus, even
without documentary evidence, his guilt or innocence may be
proven. Second, petitioner appears to have admitted the
genuineness and due execution of respondentÊs documentary
evidence, thus the prosecution need not even present such
documents in view of his admission. With or without these
documents, therefore, the prosecution has enough evidence left for
the trial courtÊs determination of his guilt.

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102 SUPREME COURT REPORTS ANNOTATED

Benares vs. Lim

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

Thus·We agree with the OSGÊs contention that the trial court
exceeded its authority when it dismissed the case without giving
the prosecution a right to be heard, hence there was a violation of
due process. Further, the failure of the prosecution to offer its
exhibits is not a ground to dismiss the case. Even without
any documentary exhibits, the prosecution could still prove
its case through the testimonies of its witnesses. Thus, we
find that when the trial court reconsidered its order of
dismissal, it merely corrected itself.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Rodrigo, Berenguer & Guno for petitioner.
Medrano Law Offices for respondent J. Lim.
**
YNARES-SANTIAGO, J.:
2
This petition for review assails the May 25, 2005 Decision
3
of the Court of Appeals4 setting aside the Resolution dated
May 5, 2004 and Order dated July 9, 2004 of the Regional
Trial Court (RTC) of Makati City, Branch5
132, which set
aside6 the Orders dated June 11, 2002 and December 26,
2002 of the Metropolitan Trial Court (MeTC) of Makati
City granting respondentÊs motion for reconsideration of
the Order dismissing the complaint for estafa for failure to7
prosecute. Also assailed is the July 7, 2006 Resolution
denying petitionerÊs motion for reconsideration.

_______________

** Working Chairperson.
2 Rollo, pp. 9-20. Penned by Associate Justice Eugenio S. Labitoria
and concurred in by Associate Justices Eliezer R. De los Santos and
Arturo D. Brion.
3 Id., at pp. 271-273. Penned by Judge Rommel O. Baybay.
4 Id., at p. 274.
5 Id., at pp. 113-114. Penned by Judge Selma Palacio Alaras.
6 Id., at pp. 144-145.
7 Id., at pp. 67-68.

103

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VOL. 511, DECEMBER 14, 2006 103

Benares vs. Lim

The following facts are undisputed:

Petitioner Oscar Beñares was accused of estafa arising
from two contracts of sale executed in 1976 where he sold
two parcels of land to respondent. Records show that after
respondent had fully paid the amortizations and after the
deed of absolute sale was issued, petitioner mortgaged the
same parcels of land to the Bank of Philippine Islands.
Thus, when respondent demanded delivery of the
properties, petitioner failed to comply, thus respondent was
compelled to file a case for estafa against petitioner.
Trial thereafter ensued. After the prosecution presented
its last witness,
8
it was given 15 days to formally offer its
evidence. However, the prosecution did not make any
formal offer of evidence, hence petitioner filed a motion
praying that the prosecutionÊs submission of formal offer of
evidence be 9deemed waived and the case dismissed for lack
of evidence. Despite receipt of notice of petitionerÊs motion,
respondent and her counsel failed to attend the hearing on
the motion set on December 4, 2001. 10
On January 28, 2002, the MeTC issued an Order giving
the prosecution another 15 days within which 11
to formally
offer its evidence which petitioner opposed. On February
27, 2002, the MeTC issued the following Order:

„In view of the oral manifestation of counsel for the accused,

showing that the private prosecutor received the Order of this Court
dated January 28, 2002 on February 7, 2002 giving them an
extension of another fifteen days to file their formal offer of
evidence, yet failed to do so; the court finds reason to deny the
submission of formal offer of evidence.

_______________

8 Id., at p. 69.
9 Id., at pp. 70-73.
10 Id., at p. 74.
11 Id., at pp. 75-82.

104

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104 SUPREME COURT REPORTS ANNOTATED

Benares vs. Lim

Acting on the Motion of the accused for the dismissal of this case,
for failure of the prosecution to prosecute this case, the motion is
granted. This case is hereby ordered DISMISSED.
12
SO ORDERED.‰

Respondent moved to reconsider the order of dismissal and

prayed for13
the admission of Formal Offer of Documentary
Exhibits, claiming that she had difficulty securing
documents from the court which were marked during trial.
Petitioner opposed14
the motion invoking his right against
double jeopardy.
On June 11, 2002, the MeTC issued an Order which
states in part:

„[I]n line with the long standing policy of the Courts to decide issues
based on the substantial merits of the case and not simply dismiss
cases on technical defects, the Court finds Merit in the Motion for
Reconsideration filed by the Prosecution.
15
Effectively, the Order of the Court dated January 28, 2002 is
set aside and the case is reinstated in the dockets of the Court. The
ProsecutionÊs Formal Offer of Evidence is admitted by the Court
and the accused is given 15 days from receipt of this Order to filed
(sic) their Comment or Opposition thereto. Thereafter, the incident
16
is deemed submitted for resolution.‰
17
PetitionerÊs18 Motion for Reconsideration was denied, hence
a petition for certiorari was filed with the RTC. In
granting the petition, the RTC noted that the MeTC Order
dismissing the case for failure to prosecute „had the effect
of an acquittal‰ which is „a bar to another prosecution for
the offense

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12 Id., at p. 83.
13 Id., at pp. 84-90.
14 Id., at pp. 91-102.
15 Should be February 27, 2002.
16 Rollo, p. 114.
17 Id., at pp. 115-129.

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

18 Id., at pp. 146-169.

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Benares vs. Lim
19
charged.‰ The RTC denied respondentÊs motion for
reconsideration.
Alleging
20
grave abuse of discretion, respondent filed a
petition for certiorari with the Court of Appeals arguing
that there was no failure to prosecute and that double
jeopardy did not attach as a result of the dismissal thereof.
The Court of Appeals reversed the RTCÊs Resolution. It
held that contrary to the findings of the RTC, there was no
double jeopardy because the order dismissing the case for
failure to prosecute had not become final and executory due
to the timely motion for reconsideration filed by
respondent. The appellate court also held that petitionerÊs
right to speedy trial was not violated when respondent
failed to formally offer her evidence within the period
required by the trial court. The Court of Appeals thus
ordered the MeTC to set the case for further trial.
Petitioner moved for reconsideration but was denied, hence
this petition on the following grounds:

I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED

IN HOLDING THAT THE RIGHT OF THE PETITIONER TO
SPEEDY TRIAL WAS NOT VIOLATED.

II.

THE HONORABLE COURT OF APPEALS SERIOUSLY

ERRED IN NOT HOLDING THAT THE DISMISSAL OF THE
CASE BY MTC-61 WAS A DISMISSAL ON THE MERITS WHICH
RESULTED IN THE ACQUITTAL OF THE PETITIONER.

III.

THE HONORABLE COURT OF APPEALS COMMITTED

SERIOUS AND REVERSIBLE ERROR IN NOT APPLYING THE

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21
RULE ON DOUBLE JEOPARDY.

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19 Id., at p. 272.
20 Id., at pp. 260-269.
21 Id., at p. 36.

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106 SUPREME COURT REPORTS ANNOTATED

Benares vs. Lim

The issue for resolution is whether the MeTCÊs Order

dismissing the case for failure to prosecute amounted to an
acquittal which gave petitioner the right to invoke double
jeopardy.
Petitioner argued that the six monthsÊ delay by the
prosecution to formally offer its evidence is vexatious,
capricious and oppressive; that the private prosecutorÊs
claim that the documents could not be found is untrue
considering that no manifestation was filed in court stating
that fact; that the documents were available as early as
January 2002 but the prosecution never asked for
extension, nor explained the delay in filing its formal offer
despite two orders to do so.
Petitioner further argued that under Section 3, Rule 17
of the Rules of Court, failure to comply with a court order
without justifiable reason may cause the dismissal of the
case, which shall have the effect of an adjudication on the
merits unless otherwise stated by the court.
Respondent, on the other hand, asserted that it was
petitioner who delayed the proceedings in the instant case,
when he questioned the finding of probable cause against
him before the Department of Justice, the Court of Appeals
and the Supreme Court, which were all denied; and that
the delay in the filing of a formal offer of evidence is
justified because as noted by the MeTC, the records were
missing.
Respondent likewise insisted that even without
documentary evidence, testimonial evidence were

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

presented against petitioner; that petitioner admitted the

documentary evidence formally offered. Respondent refuted
petitionerÊs invocation of double jeopardy because the case
was dismissed with his express consent.
The petition is without merit.
Section 7, Rule 117 of the Rules of Court states in part:

„SEC. 7. Former conviction or acquittal; double jeopardy.·When an

accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express

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VOL. 511, DECEMBER 14, 2006 107

Benares vs. Lim

consent by a court of competent jurisdiction, upon a valid complaint

or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded
to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or
is necessarily included in the offense charged in the former
complaint or information.‰

Double jeopardy attaches only (1) upon a valid indictment,

(2) before a competent court, (3) after arraignment, (4)
when a valid plea has been entered, and (5) when the
defendant was convicted or acquitted, or the case was
dismissed or otherwise 22
terminated without the express
consent of the accused.
In the instant case, there is no question as to the
presence of the first four elements. As to the last element,
there was yet no conviction, nor an acquittal on the ground
that petitionerÊs 23 guilt has not been proven beyond
reasonable doubt, but the dismissal of the case was based
on failure to prosecute.
A dismissal with the express consent or upon motion of
the accused does not result in double jeopardy, except in
two instances, to wit: (1) the dismissal is based on
insufficiency of evidence or (2) the case is dismissed for

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

24
violation of the accusedÊs right to speedy trial.
PetitionerÊs claim that the prosecutionÊs delay in filing
its formal offer of evidence violated his right to speedy trial
is not well taken.

_______________

22 Almario v. Court of Appeals, G.R. No. 127772, March 22, 2001, 355
SCRA 1, 7.
23 Malanyaon v. Lising, 193 Phil. 425, 428; 106 SCRA 237, 239 (1981).
24 Philippine Savings Bank v. Bermoy, G.R. No. 151912, September 26,
2005, 471 SCRA 94, 105-106.

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108 SUPREME COURT REPORTS ANNOTATED

Benares vs. Lim

The prosecutionÊs delay in the filing of its formal offer of

evidence in this case cannot be considered vexatious,
capricious, and oppressive. It appears that there was
justifiable reason for the prosecutionÊs failure to formally
offer its evidence on time, i.e., the documents which were
previously marked in court were misplaced. As correctly
ruled by the Court of Appeals:

„Truly, the prosecution had failed twice to file the formal offer of
evidence within the fifteen (15) day period set by the MeTC. Once
was due to the fault of the MeTC judge who expressly admitted in
his order that the documentary exhibits necessary for the formal
offer of evidence were lost in his office. Thus, the prosecution was
unable to submit its formal offer of evidence on time. In short, there
was actually only one unjustified delay in the filing of formal offer
of evidence in the proceedings below, which cannot be described as
vexatious, capricious or oppressive. There is no showing that the
criminal case was unreasonably prolonged nor there was deliberate
intent on the part of the petitioner to cause delay in the proceedings
resulting to serious and great prejudice affecting the substantial
25
rights of the accused.‰

Indeed, delay is not a mere mathematical computation of

the time involved. Each case must be decided upon the

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SUPREME COURT REPORTS ANNOTATED VOLUME 511 11/18/19, 7:42 AM

facts peculiar to it. The following factors must be

considered and balanced: the length of the delay, the
reasons for such delay, the assertion or failure to assert
such right
26
by the accused, and the prejudice caused by the
delay. In the instant case, the totality of the
circumstances excuses the delay occasioned by the late
filing of the prosecutionÊs formal offer of evidence. Since the
delay was not vexatious or oppressive, it follows that
petitionerÊs right to speedy trial was not violated,
consequently he27cannot properly invoke his right against
double jeopardy.

_______________

25 Rollo, p. 14.
26 Ty-Dazo v. Sandiganbayan, 424 Phil. 945, 951; 374 SCRA 200, 203
(2002).
27 Almario v. Court of Appeals, supra note 22 at p. 10.

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VOL. 511, DECEMBER 14, 2006 109

Benares vs. Lim

28
PetitionerÊs reliance in People v. Cloribel is misplaced
because in said case, trial commenced almost four years
from the date of filing of the complaint. Such delay, the
Court held, can hardly be ignored or disregarded by any
fair standard.
Neither can petitioner rely on the doctrine that when a
judge dismisses a case for failure to prosecute, the
termination amounts to an acquittal as the prosecution will
fail to prove the case when the time therefor comes. In the
instant case, testimonial evidence were presented against
petitioner. Thus, even without documentary evidence, his
guilt or innocence may be proven. Second, petitioner
appears to have admitted the genuineness and due
execution of respondentÊs documentary evidence, thus the
prosecution need not even present such documents in view
of his admission. With or without these documents,
therefore, the prosecution has enough evidence left for the
trial courtÊs determination of his guilt. Thus·

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„We agree with the OSGÊs contention that the trial court exceeded
its authority when it dismissed the case without giving the
prosecution a right to be heard, hence there was a violation of due
process. Further, the failure of the prosecution to offer its
exhibits is not a ground to dismiss the case. Even without
any documentary exhibits, the prosecution could still prove
its case through the testimonies of its witnesses. Thus, we
find that when the trial court reconsidered its order of
29
dismissal, it merely corrected itself.‰

WHEREFORE, the petition is DENIED. The Decision of

the Court of Appeals setting aside the Resolution dated
May 5, 2004 and Order dated July 9, 2004 of the Regional
Trial Court of Makati City, Branch 132, as well as its July
7, 2006 Resolution denying petitionerÊs motion for
reconsideration, are AFFIRMED.

_______________

28 120 Phil. 775; 11 SCRA 805 (1964).

29 People v. Alberto, 436 Phil. 434, 443-444; 387 SCRA 615, 622-623
(2002); emphasis added.

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110 SUPREME COURT REPORTS ANNOTATED

China Banking Corporation vs. Court of Appeals

SO ORDERED.

Austria-Martinez, Callejo, Sr. and Chico-Nazario,

JJ., concur.
Panganiban (C.J., Chairperson), Retired as of
December 7, 2006.

Petition denied, judgment and resolution affirmed.

Notes.·It is well-settled that a person who has

committed illegal recruitment may be charged and
convicted separately of the crime of illegal recruitment
under the Labor Code and estafa under paragraph 2(a) of
Article 315 of the Revised Penal Code. (People vs. Logan,
361 SCRA 581 [2001])

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The rule on double jeopardy, which basically means that

no person shall be put on trial twice for the same offense,
was introduced by the United States into the country
through the Philippine Bill of 1902 and the Jones Law of
1916. (Yuchengco vs. Court of Appeals, 376 SCRA 531
[2002])

··o0o··

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