SECOND DIVISION

[G.R. No. 162214. November 11, 2004.]

MARIALEN C. CORPUZ and ANTONIO H. ROMAN, SR.,

petitioners, vs. THE SANDIGANBAYAN (Special Fourth
Division) and THE PEOPLE OF THE PHILIPPINES, respondents.

Herrera Teehankee Faylona & Cabrera Law Offices for petitioners.

The Solicitor General for respondents.
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SYNOPSIS
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This is a petition for certiorari for the nullification of the resolution of
the Sandiganbayan, which set aside the verbal order of Justice Narciso S.
Nario ordering the dismissal of several criminal cases against several
accused including petitioner herein. The cases involved the so-called "tax
credit scam", which charged several accused of violation of Section 3 (e) of
Republic Act No. 3019.
The petition was denied due course by the Supreme Court. The Court
ruled that the Sandiganbayan did not commit grave abuse of discretion
amounting to excess or lack of jurisdiction in issuing the assailed resolution.
The petitioners are not entitled to a writ of mandamus. The Court agreed
with the Sandiganbayan ruling that the dismissal made in open court by the
Chairman, which was not reduced in writing, was not a valid dismissal or
termination of the cases. According to the Court, before resorting to the
extreme sanction of depriving the Ombudsman/Special Prosecutor a chance
to prove its case by dismissing the cases, the latter should be ordered by the
Sandiganbayan under pain of contempt, to explain the delay in the
submission of his report on the reinvestigation of the cases.
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SYLLABUS
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1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PETITION FOR CERTIORARI ;
WHEN PROPER. — For a petition for certiorari to be granted, it must set out
and demonstrate, plainly and distinctly, all the facts essential to establish a
right to a writ. The petitioners must allege in their petition and establish
facts to show that any other existing remedy is not speedy or adequate and
that (a) the writ is directed against a tribunal, board or officer exercising
judicial or quasi-judicial functions; (b) such tribunal, board or officer has
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to excess or lack of jurisdiction; and, (c) there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law.
2. ID.; ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION; DEFINED. — The
public respondent acts without jurisdiction if it does not have the legal power
to determine the case; there is excess of jurisdiction where the respondent,
being clothed with the power to determine the case, oversteps its authority
as determined by law. There is grave abuse of discretion where the public
respondent acts in a capricious, whimsical, arbitrary or despotic manner in
the exercise of its judgment as to be said to be equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. TECIHD

3. ID.; ID.; ID.; LIMITED TO RESOLVING ERRORS OF JURISDICTION;

CONSTRUED. — In a petition for certiorari, the jurisdiction of the court is
narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to
stray at will and resolve questions or issues beyond its competence such as
errors of judgment. Errors of judgment of the trial court are to be resolved by
the appellate court in the appeal or via a petition for review on certiorari in
this Court under Rule 45 of the Rules of Court. Certiorari will issue only to
correct errors of jurisdiction. It is not a remedy to correct errors of judgment.
An error of judgment is one in which the court may commit in the exercise of
its jurisdiction, and which error is reversible only by an appeal. As long as the
court acts within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than mere errors of
judgment, correctible by an appeal or a petition for review under Rule 45 of
the Rules of Court. An error of jurisdiction is one where the act complained of
was issued by the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari.
4. ID.; ID.; WRIT OF MANDAMUS; WHEN PROPER. — Generally, the
performance of an official act or duty which necessarily involves the exercise
of discretion or judgment cannot be compelled by mandamus. However, a
writ of mandamus may issue where there is grave abuse of discretion,
manifest injustice, or palpable excess of authority.
5. ID.; CRIMINAL PROCEDURE; JUDGMENT; MANDATED TO BE WRITTEN
IN THE OFFICIAL LANGUAGE; VIOLATED IN THE CASE AT BAR. — Section 1,
Rule 120 of the Revised Rules of Criminal Procedure, mandates that a
judgment must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and
distinctly a statement of the facts and the law upon which it is based. The
rule applies to a final order dismissing a criminal case grounded on the
violation of the rights of the accused to a speedy trial. A verbal judgment or
order of dismissal is a violation of the provision; hence, such order is, in
contemplation of law, not in esse, therefore, ineffective.
6. ID.; ID.; RIGHT OF THE ACCUSED; SPEEDY DISPOSITION OF CASES;
REQUIREMENTS. — No less than Section 16, Article III of the 1987
Constitution provides that all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or administrative
bodies. The "judicial bodies" envisaged in the said provision include the
Office of the Ombudsman and the Office of the Special Prosecutor, Rule 115,
Section 1(h) of the Revised Rules of Criminal Procedure further provides that
the accused has the right to have a speedy, impartial and public trial. The
said rule requires that the arraignment of the accused should be held within
thirty (30) days from the date the court acquired jurisdiction over the person
of the accused, unless a shorter period is provided by special law or unless
excusable delays as provided in Rule 119, Section 10 of the Rules are
attendant. Such rights to due process, speedy trial and disposition of the
case were first articulated as early as 1297 in England: "To none will we see,
to none will we deny or delay right or justice."
7. ID.; ID.; ID.; ID.; PURPOSE THEREOF. — It cannot be overstressed
that the accused in all criminal prosecutions are entitled to due process as
much as the prosecution. In Tatad v. Sandiganbayan, we held that
substantial adherence to the requirements of the law governing the conduct
of preliminary investigation, including substantial compliance with the time
limitation prescribed by the law for the resolution of the case by the
prosecutor, is part of the procedural due process constitutionally guaranteed
by the fundamental law. This ruling clearly applies to reinvestigations
authorized by the trial courts, including the Sandiganbayan. The right of the
accused to a speedy trial and to a speedy disposition of the case against him
was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays
in the administration of justice by mandating the courts to proceed with
reasonable dispatch in the trial of criminal cases. Such right to a speedy trial
and a speedy disposition of a case is violated only when the proceeding is
attended by vexatious, capricious and oppressive delays. The inquiry as to
whether or not an accused has been denied such right is not susceptible by
precise qualification. The concept of a speedy disposition is a relative term
and must necessarily be a flexible concept.
8. ID.; ID.; ID.; ID.; WHEN VIOLATED; FOUR FACTORS IN THE
DETERMINATION THEREOF. — In determining whether the accused has been
deprived of his right to a speedy disposition of the case and to a speedy trial,
four factors must be considered: (a) length of delay; (b) the reason for the
delay; (c) the defendant's assertion of his right; and (d) prejudice to the
defendant. Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to prevent
oppressive pre-trial incarceration; to minimize anxiety and concerns of the
accused to trial; and to limit the possibility that his defense will be impaired.
Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.
There is also prejudice if the defense witnesses are unable to recall
accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion and often, hostility. His
financial resources may be drained, his association is curtailed, and he is
subjected to public obloquy.
9. ID.; ID.; ID.; ID.; ID.; WHEN DISMISSAL OF THE CASE PROPER;
RATIONALE. — Under Section 9, Rule 119 of the Revised Rules of Criminal
Procedure, the trial court may dismiss a criminal case on a motion nolle
prosequi if the accused is not brought to trial within the prescribed time and
is deprived of his right to a speedy trial or disposition of the case on account
of unreasonable or capricious delay caused by the prosecution. En contrario,
the accused is not entitled to a dismissal where such delay was caused by
proceedings or motions instituted by him. But it must be understood that an
overzealous or precipitate dismissal of a case may enable the defendant,
who may be guilty, to go free without having been tried, thereby infringing
the societal interest in trying people accused of crimes rather than granting
them immunization because of legal error. Not too long ago, we emphasized
that: . . . [T]he State, like any other litigant, is entitled to its day in court, and
to a reasonable opportunity to present its case. A hasty dismissal such as
the one in question, instead of unclogging dockets, has actually increased
the workload of the justice system as a whole and caused uncalled for
delays in the final resolution of this and other cases. Unwittingly, the
precipitate action of the respondent court, instead of easing the burden of
the accused, merely prolonged the litigation and ironically enough,
unnecessarily delayed the case — in the process, causing the very evil it
apparently sought to avoid. Such action does not inspire public confidence in
the administration of justice.

DECISION

CALLEJO SR., J : p

This is a petition for certiorari for the nullification of the February 4,

2002 Resolution of the Sandiganbayan (Division of Five Members) 1 setting
aside the verbal Order of Justice Narciso S. Nario, the Chairman of its Fourth
Division, ordering the dismissal of Criminal Cases Nos. 25911-25915; 25917-
25939; 25983-26016; and its December 12, 2003 Resolution denying the
motions for reconsideration of the petitioners and the other accused in said
cases, 2 as well as their petition for mandamus to compel the Sandiganbayan
to dismiss the said cases.
The Antecedents
After the termination of the requisite preliminary investigation in OMB
Cases Nos. 0-99-2188 to 2205, the Office of the Ombudsman issued a
Resolution on July 27, 2000 finding probable cause against petitioners
Antonio H. Roman, Sr. and Marialen C. Corpuz, the President and Vice-
President of FILSYN Corporation, respectively, and several others. On April
10, 2000, the petitioners, the Undersecretary of Finance Antonio P. Belicena,
and the officers of the Petron Corporation, were charged with violation of
Section 3(e) of Republic Act No. 3019, involving the so-called "tax credit
scam" in an Information docketed as Criminal Case No. 25922 which reads:
The undersigned Ombudsman Prosecutors, Office of the
Ombudsman, hereby accuse ANTONIO P. BELICENA, ULDARICO P.
ANDUTAN, JR., MONICO V. JACOB, CELSO L. LEGARDA, ABDULAZIZ F.
AL-KHAYYAL, APOLINARIO G. REYES, REYNALDO V. CAMPOS, RAFAEL
S. DIAZ, JR., ANTONIO H. ROMAN, SR., AND MARIALEN C. CORPUZ, of
violation of Section 3(e) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:

That, during the period from 13 May 1994 to 09 June 1997,

or for sometime prior or subsequent thereto, in the City of
Manila, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the aforementioned first two (2) accused
Antonio P. Belicena and Uldarico P. Andutan, Jr., both public
officers, being then the Assistant Secretary/Administrator, and
Deputy Executive Director, respectively, of the One Stop Shop
Inter-Agency Tax Credit & Duty Drawback Center, Department of
Finance, Manila, while in the performance of their official
functions and acting with evident bad faith and manifest
partiality, conspiring and confederating with each other, together
with accused Monico V. Jacob, Celso L. Legarda, Abdulaziz F. Al-
Khayyal, Apolinario G. Reyes, Reynaldo V. Campos and Rafael S.
Diaz, Jr., all officials of Petron Corporation, and Antonio H.
Roman, Sr. and Marialen C. Corpuz, both officers of Filsyn
Corporation, did then and there, willfully, unlawfully and (sic )
recommend and criminally approve the transfer of the following
Tax Credit Certificates purportedly issued to Filsyn Corp., to wit:

TCC No. Amount

0159 P713,213.00
0164 1,399,912.00
0205 1,313,576.00
1106 1,128,118.00
1010 2,268,599.00
1029 956,662.00
1030 2,243,517.00
1165 1,282,215.00
1180 1,399,950.00
1189 1,884,327.00
1204 702,105.00
1208 563,121.00
1245 562,551.00
1496 1,826,342.00
1497 2,453,521.00
1498 731,196.00
1499 418,534.00
1564 1,431,912.00
1592 2,006,920.00
1633 784,148.00
1634 1,213,080.00
1667 1,649,799.00
1732 119,795.00
1756 2,663,711.00
1798 2,436,946.00
1805 602,212.00
2160 2,375,949.00
19762 948,215.00
19763 2,011,753.00
2205 3,701,703.00
2219 4,792,190.00
2253 441,461.00
2273 1,081,349.00
2274 1,237,078.00
2308 1,805,291.00
2309 1,044,837.00
2331 1,474,537.00
2420 1,807,435.00
2421 1,351,385.00
2422 687,520.00
2423 1,508,715.00
2424 501,893.00
2430 1,609,726.00
2436 901,146.00
2463 1,016,673.00
2465 337,001.00
2482 1,960,916.00
2583 593,876.00
2587 1,588,883.00
2602 1,770,638.00
2727 1,487,893.00
2728 1,402,612.00
2755 1,499,909.00
2762 1,163,789.00
2763 1,854,245.00
3113 1,079,770.00
3131 99,578.00
3164 459,986.00
3202 3,699,103.00
3204 1,225,135.00
3288 408,000.00
3289 7,228,572.00
3291 2,844,774.00
3530 374,272.00
3549 1,658,172.00
3550 613,410.00
3416 653,750.00
3653 370,500.00
3670 805,480.00
3708 2,899,693.00
3909 1,867,139.00
3910 1,509,529.00
4009 2,308,264.00
4035 2,790,331.00
4042 6,326,431.00
4147 5,317,781.00
4299 3,336,559.00
4557 4,987,214.00
 ––––––––––––––
Total P131,547,043.00
 =============
 from Filsyn Corporation, represented by accused Antonio H.
Roman, Sr. and Marialen C. Corpuz, unto and in favor of Petron Corp.,
represented by accused Monico V. Jacob, Cesar L. Legarda, Abdulaziz
F. Al-Khayyal, Apolinario G. Reyes, Reynaldo V. Campos or Rafael S.
Diaz, Jr., without legal basis and proper/required documentation,
thereby causing undue injury and damage to the government in the
aforestated amount and at the same time giving unwarranted benefit,
preference or advantage to the said private firms. cTSHaE

CONTRARY TO LAW. 3
Aside from the aforestated case, sixty-one (61) similar Informations
were filed by the Office of the Ombudsman against some fifty (50) public
officials and private individuals relating to the issuance of tax credit
certificates.
The accused Monico V. Jacob and Celso Legarda were arraigned and
pleaded not guilty. 4
As narrated by the petitioners, the following events transpired in the
Sandiganbayan/Office of the Ombudsman:
4.2 Â Criminal Case No. 25922, along with other cases
involving allegedly anomalous TCC transfers, namely, Criminal Cases
Nos. 25911-25915, 25917-25921, 25923-25939, and 25983-26016
were raffled to the Fourth Division of the Sandiganbayan.
4.3 Â On 17 April 2000, petitioners filed with the Office of the
Ombudsman a "Very Urgent Motion for Leave to File Motion for
Reconsideration or Reinvestigation" dated 16 April 2000, with an
attached "Motion for Reconsideration or Reinvestigation (Re:
Resolution dated 27 March 2000)" dated 17 April 2000, through which
they sought reversal of the Office of the Ombudsman's 27 March
2000 "Resolution" which directed the filing of the "Information" in
Criminal Case No. 25922. A copy of petitioners' "Very Urgent Motion
for Leave to File Motion for Reconsideration or Reinvestigation" dated
16 April 2000, with their "Motion for Reconsideration or
Reinvestigation (Re: Resolution dated 27 March 2000)" dated 17 April
2000 attached to it as its Annex "1", is attached to this "Petition", and
made an integral part of it, as its Annex "D."
4.4 Â On 28 April 2000, the Fourth Division of the
Sandiganbayan issued an "Order" granting petitioners, among other
movants, leave to file their respective motions for reinvestigation or
reconsideration, and gave the Prosecution sixty (60) days to resolve
the said motions.
4.5 Â The sixty (60) day deadline given the Prosecution to
complete its reinvestigations and report its findings in relation to such
reinvestigations passed without the Prosecution resolving petitioners'
"Motion for Reconsideration or Reinvestigation (Re: Resolution dated
27 March 2000)" dated 17 April 2000.
4.6 Â The Prosecution's failure to resolve the motions for
reconsideration filed by petitioners and the other accused in Criminal
Cases Nos. 25911-25939 and 25983-26016 dragged on into the
middle of 2001.
 4.7 Â At the hearing of Criminal Cases Nos. 25911-25939
and 25983-26016 held on 1 June 2001, the Prosecution was
specifically warned by the court that should it fail to resolve the
accused's pending motions for reconsideration, it was possible that
Criminal Cases Nos. 25911-25939 and 25983-26016 would be
dismissed.
*4.9 Â The court's warning notwithstanding, the Prosecution,
in a "Manifestation" dated 21 June 2001, again sought cancellation of
the arraignment and pre-trial conference in Criminal Cases Nos.
25911-25939 and 25983-26016 set on 2 July 2001, but the court
denied that request in a "Resolution" dated 26 June 2001, in which
the court again reminded the Prosecution that Criminal Cases Nos.
25911-25939 and 25983-26016 had been pending for more than a
year and that further delay caused by it would not be countenanced.
4.10 Â Despite the court's warning, the Prosecution still
failed to resolve the pending motions for reinvestigation by the time
of the scheduled arraignment and pre-trial conference set on 2 July
2001, prompting the court to issue an order which gave the
Prosecution an additional ten (10) days to resolve the motions, and
reset the scheduled arraignment and pre-trial conference to 17 July
2001.
4.11 Â Despite the lapse of the ten (10) day additional
period given it, the Prosecution again failed to complete, and submit
the results of, its reinvestigation, and instead filed a "Manifestation"
requesting the cancellation and resetting of the arraignment and pre-
trial conference set on 17 July 2001.CHDTEA

4.12 Â In an "Order" dated 17 July 2001, the court directed

the Prosecution to complete its reinvestigation, and submit the
results of that reinvestigation to the court, by 16 August 2001, and
granted the Prosecution's request for a resetting by canceling the
scheduled arraignment and pre-trial conference and setting it on 20
August 2001.
4.13 Â On 16 August 2001, the Prosecution again failed to
report completion of the reinvestigation process, but only filed an
"Omnibus Motion" in which it informed the court only that the
prosecutor concerned had already made a recommendation to the
Office of the Special Prosecutor. There being no resolution of the
pending motions for reinvestigation yet, the Prosecution sought yet
another cancellation of the scheduled arraignment and pre-trial
conference on 20 August 2001.
4.14 Â The Prosecution repeated its request for deferment of
the scheduled arraignment and pre-trial conference at the scheduled
hearing on 20 August 2001, but this time, the request was denied by
Justice Nario, who issued an oral order dismissing the case on
account of the long delay associated with the Prosecution's resolution
of the motions for reinvestigation filed by accused.
Â
4.15 Â However, since Justice Nario and the other (2) regular
members of the Fourth Division of the Sandiganbayan could not reach
unanimity on upholding Justice Nario's dismissal of Criminal Cases
 Nos. 25911-25939 and 25983-26016, a Special Fourth Division
composed of five (5) members of the Honorable Sandiganbayan was
constituted pursuant to Section 1(b) of Rule XVIII of the 1984 Revised
Rules of the Sandiganbayan.
* 4.15 Â On 4 February 2002, a bare majority of respondent
c o u r t , 5 overruling dissents by Justice Nario and Justice Raoul
Victorino, issued its first questioned "Resolution" dated 4 February
2002, the dispositive portion of which set aside the order of dismissal
issued by Justice Nario in open court at the hearing of 20 August 2001
in the following manner:

"WHEREFORE, the dismissal of these cases orally ordered

in open court by the Chairman of the Fourth Division during its
court session held on August 20, 2001, and reiterated in his
subsequent ponencia, is hereby set aside. . . . ."

4.16 Â Petitioners filed their "Motion for Reconsideration"

dated 11 February 2002 from the questioned "Resolution" dated 4
February 2002 on 18 February 2002. A copy of petitioners' "Motion
for Reconsideration" dated 11 February 2002 is attached to this
"Petition", and made an integral part of it, as its Annex "E." 6
Several of the other accused also filed similar motions for
reconsideration and/or motions to quash/dismiss which the prosecution
opposed. 7
On December 12, 2003, the Sandiganbayan, by unanimous vote, issued
a Resolution denying all the motions respectively filed by the accused,
including the petitioners:
WHEREFORE, for lack of merit, the court issues an Omnibus
Re s o l u t i o n denying all the above described motions for
reconsideration.
This disposition renders moot and academic the resolution of
the court dated May 6, 2002 penned by Justice Narciso S. Nario,
which deferred action on the Manifestation of the prosecution
considering that there is no need for the court to act on the same, as
the Manifestation was filed merely for the court's information on the
action taken by the Office of the Special Prosecutor on the various
motions for reconsideration filed by the accused in these cases. SaITHC

SO ORDERED. 8

Only the petitioners filed their petition for certiorari and mandamus
assailing the February 4, 2002 and the December 12, 2003 Resolutions of
the Sandiganbayan, asserting that the graft court committed a grave abuse
of its discretion amounting to excess or lack of jurisdiction in issuing the
same. 9
In its Comment on the petition, the Office of the Ombudsman, through
the Office of the Special Prosecutor, avers that the delay in the submission
to the Sandiganbayan of its report on its reinvestigation was caused by the
pendency of the other cases of equal, if not of more importance, not to
mention the filing of twenty-two (22) other motions for reconsideration
and/or reinvestigation by the other accused in the said cases. 10 It asserts
that the more than one-year delay is not capricious, much less, intolerably
capricious. It also contends that the oral dismissal of the cases by Justice
Narciso S. Nario was too drastic, as it deprived the respondent of its right to
prosecute the cases and prove the guilt of the petitioners beyond reasonable
doubt for the crimes charged.
The Ruling of the Court
The petition is denied due course.
For a petition for certiorari to be granted, it must set out and
demonstrate, plainly and distinctly, all the facts essential to establish a right
to a writ. 11 The petitioners must allege in their petition and establish facts
to show that any other existing remedy is not speedy or adequate 12 and
that (a) the writ is directed against a tribunal, board or officer exercising
judicial or quasi-judicial functions; (b) such tribunal, board or officer has
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to excess or lack of jurisdiction; and, (c) there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law. 13
The public respondent acts without jurisdiction if it does not have the
legal power to determine the case; there is excess of jurisdiction where the
respondent, being clothed with the power to determine the case, oversteps
its authority as determined by law. There is grave abuse of discretion where
the public respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment as to be said to be equivalent to lack
of jurisdiction. 14 Mere abuse of discretion is not enough.
In a petition for certiorari, the jurisdiction of the court is narrow in
scope. It is limited to resolving only errors of jurisdiction. It is not to stray at
will and resolve questions or issues beyond its competence such as errors of
judgment. Errors of judgment of the trial court are to be resolved by the
appellate court in the appeal or via a petition for review on certiorari in this
Court under Rule 45 of the Rules of Court. Certiorari will issue only to correct
errors of jurisdiction. It is not a remedy to correct errors of judgment. 15 An
error of judgment is one in which the court may commit in the exercise of its
jurisdiction, and which error is reversible only by an appeal. As long as the
court acts within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than mere errors of
judgment, correctible by an appeal or a petition for review under Rule 45 of
the Rules of Court. 16 An error of jurisdiction is one where the act complained
of was issued by the court without or in excess of jurisdiction and which error
is correctible only by the extraordinary writ of certiorari. 17
Generally, the performance of an official act or duty which necessarily
involves the exercise of discretion or judgment cannot be compelled by
mandamus. However, a writ of mandamus may issue where there is grave
abuse of discretion, manifest injustice, or palpable excess of authority. 18
In this case, we find and so rule that the Sandiganbayan did not
commit grave abuse of discretion amounting to excess or lack of jurisdiction
in issuing the assailed resolutions. We also held that the petitioners are not
entitled to a writ of mandamus.
The Verbal Order of Dismissal
By Justice Nario Is A Nullity
In the unanimous Resolution of December 12, 2003, the
Sandiganbayan ruled as follows:
In the cases at bar, the dismissal made in open court by the
Chairman, which was not reduced in writing, is not a valid dismissal
or termination of the cases. This is because the Chairman cannot
unilaterally dismiss the same without the approval or consent of the
other members of the Division. The Sandiganbayan is a collegiate
court and under its internal rules prevailing at the time (Rule XVIII,
Section 1(b) of the 1984 Revised Rules of the Sandiganbayan , which
is now Section 1(b), Rule VIII of the 2002 Revised Internal Rules of the
Sandiganbayan), an order, resolution or judgment, in order to be valid
— that is to say, in order to be considered as an official action of the
Court itself — must bear the unanimous approval of the members of
the division, or in case of lack thereof, by the majority vote of the
members of a special division of five. 19
We agree with the foregoing ratiocination. Section 1, Rule 120 of the
Revised Rules of Criminal Procedure, mandates that a judgment must be
written in the official language, personally and directly prepared by the
judge and signed by him and shall contain clearly and distinctly a statement
of the facts and the law upon which it is based. The rule applies to a final
order dismissing a criminal case grounded on the violation of the rights of
the accused to a speedy trial. 20 A verbal judgment or order of dismissal is a
violation of the provision; hence, such order is, in contemplation of law, not
i n esse, therefore, ineffective. Justice Nario failed to issue a written
resolution dismissing the criminal cases for failure of the prosecution to
submit its report on the reinvestigation of the cases within the sixty-day
period fixed by the graft court. Moreover, the verbal order was rejected by
majority vote of the members of the Sandiganbayan Special Division. In fine,
there has been no valid and effective order of dismissal of the cases. The
Sandiganbayan cannot then be faulted for issuing the assailed resolutions.
CASTDI

Neither are the petitioners entitled to a writ of mandamus to compel

the Sandiganbayan to reinstate the cases, considering that the verbal order
of Justice Nario as aforestated does not exist at all in contemplation of law.
In Criminal Cases, the Accused
Is Entitled To a Speedy
Disposition of the Cases
against Him
No less than Section 16, Article III of the 1987 Constitution provides
that all persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial or administrative bodies. The "judicial
bodies" envisaged in the said provision include the Office of the Ombudsman
and the Office of the Special Prosecutor.
 Rule 115, Section 1(h) of the Revised Rules of Criminal Procedure
further provides that the accused has the right to have a speedy, impartial
and public trial. The said rule requires that the arraignment of the accused
should be held within thirty (30) days from the date the court acquired
jurisdiction over the person of the accused, unless a shorter period is
provided by special law or unless excusable delays as provided in Rule 119,
Section 10 of the Rules are attendant. 21 Such rights to due process, speedy
trial and disposition of the case were first articulated as early as 1297 in
England: "To none will we see, to none will we deny or delay right or justice."
22

It cannot be overstressed that the accused in all criminal prosecutions

are entitled to due process as much as the prosecution. In Tatad v.
Sandiganbayan, 23 we held that substantial adherence to the requirements
of the law governing the conduct of preliminary investigation, including
substantial compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural due
process constitutionally guaranteed by the fundamental law. This ruling
clearly applies to reinvestigations authorized by the trial courts, including
the Sandiganbayan.
The right of the accused to a speedy trial and to a speedy disposition of
the case against him was designed to prevent the oppression of the citizen
by holding criminal prosecution suspended over him for an indefinite time,
and to prevent delays in the administration of justice by mandating the
courts to proceed with reasonable dispatch in the trial of criminal cases. 24
Such right to a speedy trial and a speedy disposition of a case is violated
only when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused has been
denied such right is not susceptible by precise qualification. The concept of a
speedy disposition is a relative term and must necessarily be a flexible
concept. 25
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. 26 It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances. It
secures rights to the accused, but it does not preclude the rights of public
justice. 27 Also, it must be borne in mind that the rights given to the accused
by the Constitution and the Rules of Court are shields, not weapons; hence,
courts are to give meaning to that intent. 28
A balancing test of applying societal interests and the rights of the
accused necessarily compels the court to approach speedy trial cases on an
ad hoc basis. 29
In determining whether the accused has been deprived of his right to a
speedy disposition of the case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the delay; (c) the
defendant's assertion of his right; and (d) prejudice to the defendant.
Prejudice should be assessed in the light of the interest of the defendant that
the speedy trial was designed to protect, namely: to prevent oppressive pre-
trial incarceration; to minimize anxiety and concerns of the accused to trial;
and to limit the possibility that his defense will be impaired. Of these, the
most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. There is also
prejudice if the defense witnesses are unable to recall accurately the events
of the distant past. 30 Even if the accused is not imprisoned prior to trial, he
is still disadvantaged by restraints on his liberty and by living under a cloud
of anxiety, suspicion and often, hostility. 31 His financial resources may be
drained, his association is curtailed, and he is subjected to public obloquy. 32
Delay is a two-edge sword. It is the government that bears the burden
of proving its case beyond reasonable doubt. The passage of time may make
it difficult or impossible for the government to carry its burden. 33 The
Constitution and the Rules do not require impossibilities or extraordinary
efforts, diligence or exertion from courts or the prosecutor, nor contemplate
that such right shall deprive the State of a reasonable opportunity of fairly
prosecuting criminals. 34 As held in Williams v. United States, 35 for the
government to sustain its right to try the accused despite a delay, it must
show two things: (a) that the accused suffered no serious prejudice beyond
that which ensued from the ordinary and inevitable delay; and (b) that there
was no more delay than is reasonably attributable to the ordinary processes
of justice.
Closely related to the length of delay is the reason or justification of
the State for such delay. Different weights should be assigned to different
reasons or justifications invoked by the State. For instance, a deliberate
attempt to delay the trial in order to hamper or prejudice the defense should
be weighted heavily against the State. Also, it is improper for the prosecutor
to intentionally delay to gain some tactical advantage over the defendant or
to harass or prejudice him. 36 On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the
State. Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal
Procedure enumerates the factors for granting a continuance. 37
The Delay in the Arraignment And
The Trial of the Petitioners was
Caused By Them, the Other
Accused and the Ombudsman/
Special Prosecutor
In its February 4, 2002 Resolution, the Sandiganbayan overruled the
verbal Order of Justice Nario for the following reasons:
In the present case, (1) there is already a delay of the trial for
more than one year now; (2) but it is not shown that the delay is
vexatious, capricious and oppressive; (3) it may be that, as stated in
the herein dissented Resolution, "at the hearings conducted in these
cases, the defense orally, openly and consistently asked for the
dismissal of these cases;" however, these oral manifestations were
more of "knee-jerk reactions" of the defense counsel in those
hearings everytime the prosecution requested for postponement than
 anything else as said defense counsel did not seriously pursue the
dismissal of these cases, such as by reducing their "request" in a
formal written motion to dismiss and/or insisting that the court
formally rule on their request for dismissal and go on certiorari if
denied; and (4) considering the nature and importance of the cases, if
there is any prejudice that may have resulted as a consequence of
the series of postponements, it would be more against the
government than against any of the accused; however, be that as it
may, none of the herein accused has come out to claim having been
thus prejudiced. 38
The records show that the failure of the petitioners and the other
accused to be arraigned and the case against them tried was caused by (1)
the filing of their motion for reconsideration and/or reinvestigation which
was granted by the Sandiganbayan; and (2) the failure of the
Ombudsman/Special Prosecutor to terminate his reinvestigation and submit
his report thereon within the sixty-day period fixed by the graft court. aACEID

The Ombudsman/Special Prosecutor filed the Informations on April 10,

2000 even before the lapse of the five-day period within which to file a
motion for reconsideration or the reinvestigation thereof as provided in
Administrative Order No. 15 of the Ombudsman. 39 This impelled the
petitioners to file on April 17, 2000 a very urgent motion for leave to file a
motion for reconsideration of the said resolution finding probable cause
against them or the reinvestigation thereof, on the ground that there was no
factual and legal basis for their indictment for violation of Section 3(e) of
Rep. Act No. 3019.
On April 28, 2000, the Sandiganbayan issued a Resolution granting the
motion of the petitioners and gave the prosecutor a period of sixty (60) days
from notice within which to conduct a reinvestigation of the case. However,
aside from the petitioners, the other accused filed 23 separate motions for
reconsideration/reinvestigation in Criminal Cases Nos. 25911-25939 and
25983-26016.
The arraignment of the accused including the petitioners and the pre-
trial of the cases had to be suspended by the Sandiganbayan until after the
Ombudsman/Special Prosecutor had completed the consolidated
reinvestigation of the cases and submitted his consolidated report to the
graft court. However, the Prosecutor failed to terminate his reinvestigation of
the cases within the period given him, which impelled the Sandiganbayan,
over the verbal objections of the petitioners, to repeatedly reset the
arraignment of the petitioners and that of the other accused. Thereafter,
Justice Nario verbally dismissed the cases on August 20, 2001, despite the
"Omnibus Motion" of the Prosecution on August 16, 2001 informing the
Sandiganbayan that he had already submitted his recommendation on his
reinvestigation to the Office of the Special Prosecutor for the latter's
consideration and approval.
The Petitioners were Burdened to
Prove the Factual and Legal Basis
For Motion Nolle Prosequi;
The Prosecutor was Burdened
To Prove a Valid Justification
For Non-Compliance with
The Order of the Sandiganbayan
And the Motion for Continuance
Prefatorily, we find it unfair for the majority members of the
Sandiganbayan to brand the verbal motions nolle prosequi of the petitioners
as a mere "knee-jerk reaction/action" to the Prosecutor's repeated motions
for continuance. Although the petitioners failed to file written motions for the
dismissal of the cases, their verbal motions should not be brushed aside as
trivial. Ideally, the petitioners should file formal motions for the dismissal of
the cases. However, they are not precluded from orally moving for the
dismissal of the said cases. In McCandles v. District Court, 40 the appellate
court held that the proper method of making demands for speedy trial is by
motions filed in the case or made in open court. A demand therefor must be
made in court. The Sandiganbayan would have acted beyond its authority if
it had dismissed the case against the accused simply because the prosecutor
had gone to sleep at the switch while the defendant and his counsel rested
in silence. 41 The accused must not be rewarded by the dismissal of the case
and the State and society punished by the neglect of the prosecutor unless
the accused himself calls the attention of the court to the matter. 42
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure,
the petitioners had the burden of proving the factual basis for their motions
for the dismissal of the Informations on the ground of a denial of their right
to a speedy trial and to a speedy disposition of the cases against them. They
were burdened to prove that such delay caused by the Prosecutor was
vexatious, capricious or whimsical. On the other hand, the Prosecutor was
burdened to present evidence to establish that the delay in the submission
of his report on the reinvestigation of the cases was reasonably attributed to
the ordinary process of justice, and that the accused suffered no serious
prejudice beyond that which ensued after an inevitable and ordinary delay.
Indubitably, there was an undue and inordinate delay in the
reinvestigation of the cases by the Ombudsman/Special Prosecutor, and,
consequently, the submission of his report thereon. Despite the lapse of
more than one year, he failed to comply with the Orders of the
Sandiganbayan. It bears stressing that a reinvestigation is summary in
nature, and merely involves a reexamination and re-evaluation of the
evidence already submitted by the complainant and the accused, as well as
the initial finding of probable cause which led to the filing of the Informations
after the requisite preliminary investigation. Undeniably, the
Ombudsman/Special Prosecutor is saddled with "cases of equal, if not of
more importance" than the cases against the petitioners. However, this is
not a valid justification for an inordinate delay of one (1) year in the
termination of the reinvestigation of the cases. The Prosecutor should have
expedited the reinvestigation not only because he was ordered by the
Sandiganbayan to submit a report within sixty (60) days, but also because
he is bound to do so under the Constitution, and under Section 13 of Rep.
Act No. 6770:
The Ombudsman and his deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against
public officials or employees of the Government, or any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations, and shall, in appropriate cases, notify the
complainants of the action taken and the results thereof. (Section 12,
Article XI of the 1987 Constitution)
The Ombudsman and his deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against
public officials or employees of the Government, or any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order
to promote efficient service by the government to the people.
(Section 13, Republic Act No. 6770)
In Hodges v. United States, 43 it was emphasized that the government,
and for that matter, the trial court, is not without responsibility for the
expeditious trial for criminal cases. The burden for trial promptness does not
solely rest upon the defense. The right to a speedy trial is not to be honored
only for the vigilant and the knowledgeable. 44 In De Vera v. Layague, 45 we
also held that:
The constitutional mandate to promptly dispose of cases does
not only refer to the decision of cases on their merits, but also to the
resolution of motions and other interlocutory matters, as the
constitutional provisions explicitly mention "cases" and "matters."
Therefore, respondent judge must not be excused for his delay in
resolving the incident in Civil Case No. 17215.
The Dismissal of the
Information Was Too Drastic
We note that the Prosecutor informed the Sandiganbayan on August
16, 2001 that he had already submitted his recommendation on the
reinvestigation of the cases to the Special Prosecutor, and requested for
continuance anew. The graft court again obliged, and reset the arraignment
of the accused to August 20, 2001, only to be informed by the Prosecutor
that his recommendation had not yet been acted upon by the Special
Prosecutor/Ombudsman. The unexplained delay by the Ombudsman/Special
Prosecutor of his compliance with the Sandiganbayan's directive brings to
mind the trite and distressing observation of this Court in Abardo v.
Sandiganbayan: 46
Clearly, the delay in this case disregarded the Ombudsman's
duty, as mandated by the Constitution and Republic Act No. 6770, to
enforce the criminal liability of government officers or employees in
every case where the evidence warrants in order to promote efficient
service to the people. The fact that up to this time no trial has been
set, apparently due to the inability of the Ombudsman to complete
the reinvestigation is a distressing indictment of the criminal justice
system, particularly its investigative and prosecutory pillars.
aETADI
 The Sandiganbayan, for its part, is not free of blame. In resolving the
motions for reconsideration of the petitioners and the other accused, it
should have required the Ombudsman/Special Prosecutor, under pain of
contempt, to explain and justify the inordinate delay in the submission of the
report on the reinvestigation. The Sandiganbayan failed to do so. The graft
court was content to issue mere orders denying the motions for
reconsideration of the petitioners and the other accused.
The Court is wont to stress that the State, through the Sandiganbayan
and the Ombudsman/Special Prosecutor, has the duty of insuring that the
criminal justice system is consistent with due process and the constitutional
rights of the accused. Society has a particular interest in bringing swift
prosecutions and society's representatives are the ones who should protect
that interest. 47 It has been held that the right to a prompt inquiry into
criminal charges is fundamental and the duty of the charging authority is to
provide a prompt disposition of the case. 48
Prescinding from the foregoing, we agree with the Sandiganbayan that
the dismissal of the cases was precipitate and unwarranted. The State
should not be prejudiced and deprived of its right to prosecute the cases
simply because of the ineptitude or nonchalance of the Ombudsman/Special
Prosecutor.
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure,
the trial court may dismiss a criminal case on a motion nolle prosequi if the
accused is not brought to trial within the prescribed time and is deprived of
his right to a speedy trial or disposition of the case on account of
unreasonable or capricious delay caused by the prosecution. 49 En contrario ,
the accused is not entitled to a dismissal where such delay was caused by
proceedings or motions instituted by him. 50 But it must be understood that
an overzealous or precipitate dismissal of a case may enable the defendant,
who may be guilty, to go free without having been tried, thereby infringing
the societal interest in trying people accused of crimes rather than granting
them immunization because of legal error. 51 Not too long ago, we
emphasized that:
. . . [T]he State, like any other litigant, is entitled to its day in
court, and to a reasonable opportunity to present its case. A hasty
dismissal such as the one in question, instead of unclogging dockets,
has actually increased the workload of the justice system as a whole
and caused uncalled-for delays in the final resolution of this and other
cases. Unwittingly, the precipitate action of the respondent court,
instead of easing the burden of the accused, merely prolonged the
litigation and ironically enough, unnecessarily delayed the case — in
the process, causing the very evil it apparently sought to avoid. Such
action does not inspire public confidence in the administration of
justice. 52
There can be no denying the fact that the petitioners, as well as the
other accused, was prejudiced by the delay in the reinvestigation of the
cases and the submission by the Ombudsman/Special Prosecutor of his
report thereon. So was the State. We have balanced the societal interest
involved in the cases and the need to give substance to the petitioners'
constitutional rights and their quest for justice, and we are convinced that
the dismissal of the cases is too drastic a remedy to be accorded to the
petitioners. The cloud of suspicion may still linger over the heads of the
petitioners by the precipitate dismissal of the cases. We repeat — the cases
involve the so-called tax credit certificates scam and hundreds of millions of
pesos allegedly perpetrated by government officials in connivance with
private individuals. The People has yet to prove the guilt of the petitioners of
the crimes charged beyond reasonable doubt. We agree with the ruling of
the Sandiganbayan that before resorting to the extreme sanction of
depriving the petitioner a chance to prove its case by dismissing the cases,
the Ombudsman/Special Prosecutor should be ordered by the
Sandiganbayan under pain of contempt, to explain the delay in the
submission of his report on his reinvestigation.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE.
SO ORDERED.
Austria-Martinez and Chico-Nazario, JJ ., concur.
Puno, J ., is on official leave.
Tinga, J ., is on leave.
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Footnotes

1. Â Penned by Associate Justice Nicodemo T. Ferrer, with Associate Justices

Rodolfo G. Palattao and Catalino R. Castañeda, Jr., concurring, and with
Associate Justices Narciso S. Nario and Raoul V. Victorino, dissenting.

2. Â Penned by Associate Justice Rodolfo G. Palattao, with Associate Justices

Gregory S. Ong, Norberto Y. Geraldez, Raoul U. Victorino and Diosdado M.
Peralta, concurring.

3.  Rollo , pp. 72–74.

4. Â Id. at 64.

5. Â SEC. 2. Resolution on Interlocutory or Incidental Motions. — Rulings on all

written motions on interlocutory or incidental matters submitted to any
regular Division for resolution shall be reached in consultation among and by
the unanimous vote of the three (3) Justices participating in the
consideration thereof: Provided, however, that rulings on oral motions or
objections made in the course of the trial or hearing shall be made by the
Chairman of the Division: Provided, further, that oral motions or objections on
substantial but interlocutory or incidental matters may be ordered reduced
into writing and shall likewise be resolved by the unanimous vote of the
three (3) Justices of the Division.

  In case a unanimous vote cannot be obtained, a Special Division of five

(5) Justices shall be constituted pursuant to Section 1 (b), Rule VIII. A
majority vote of such Special Division shall suffice to decide interlocutory or
incidental motions.
 xxx xxx xxxÂ

  (b)  In Division — The unanimous vote of three (3) Justices in a

Division shall be necessary for the rendition of a judgment or final order. In
the event a unanimous vote is not obtained, the Presiding Justice shall
designate by raffle and on rotation basis two (2) Justices from all the other
members of the Sandiganbayan to sit temporarily with them, forming a
Special Division of five (5) Justices, and the vote of a majority of such Special
Division shall be necessary for the rendition of a judgment or final order.

6.  Rollo , pp. 9–14.

7.  Id. at 62–64.

8.  Id. at 69–70.

9. Â Penned by Associate Justice Rodolfo G. Palattao (retired), with Associate

Justices Gregory S. Ong, Norberto Y. Geraldez, Raoul V. Victorino and
Diosdado M. Peralta, concurring.

10.  Rollo , pp. 140–143.

11. Â Henry v. Finta, 559 So. 2d 434 (1990).

12. Â Alabama Power Co. v. City of Fort Payne, 187 So. 632 (1939).

13. Â Sanchez v. Court of Appeals, 279 SCRA 647 (1997).

14. Â Condo Suite Club Travel, Inc. v. NLRC, 323 SCRA 679 (2000).

15. Â People v. Court of Appeals , 308 SCRA 687 (1999).

16. Â Ibid.

17. Â Toh v. Court of Appeals , 344 SCRA 831 (2000).

18. Â Licaros, Jr. v. Sandiganbayan, 370 SCRA 394 (2001); Angchangco, Jr. v.
Ombudsman, 268 SCRA 301 (1997).

19. Â Id. at 68.

20. Â Rivera, Jr. v. People, 189 SCRA 831 (1990).

21. Â SEC. 10. Exclusions. — The following periods of delay shall be excluded in
computing the time within which trial must commence:

  (a)  Any period of delay resulting from other proceedings

concerning the accused, including but not limited to the following:

   (1)  delay resulting from an examination of the accused, and

hearing on his/her mental competency, or physical incapacity;

   (2)  delay resulting from trials with respect to charges against

the accused;

   (3)  delay resulting from interlocutory appeals;

 Â Â Â (4) Â delay resulting from hearings on pre-trial motions;
Provided, That the delay does not exceed thirty (30) days;

   (5)  delay resulting from orders of inhibition, or proceedings

relating to change of venue of cases or transfer from other courts;

   (6)  delay resulting from a finding of the existence of a valid

prejudicial question; and

   (7)  delay reasonably attributable to any period, not to

exceed thirty (30) days, during which any proceeding concerning the
accused is actually under advisement.

  (b)  Any period of delay resulting from the absence or unavailability

of the accused or an essential witness.

  For purposes of this subparagraph, an accused or an essential witness

shall be considered absent when his/her whereabouts are unknown and, in
addition, he/she is attempting to avoid apprehension or prosecution or
his/her whereabouts cannot be determined by due diligence. An accused or
an essential witness shall be considered unavailable whenever his/her
whereabouts are known but his/her presence for trial cannot be obtained by
due diligence or he/she resists appearing at or being returned for trial.

  (c)  Any period of delay resulting from the fact that the accused is
mentally incompetent or physically unable to stand trial.

  (d)  If the information is dismissed upon motion of the prosecution

and thereafter a charge is filed against the accused for the same offense, or
any offense required to be joined with that offense, any period of delay from
the date the charge was dismissed to the date the time limitation would
commence to run as to the subsequent charge had there been no previous
charge.

  (e)  A reasonable period of delay when the accused is joined for

trial with a co-accused over whom the court has not acquired jurisdiction, or
as to whom the time for trial has not run and no motion for severance has
been granted.

  (f)  Any period of delay resulting from a continuance granted by

any justice or judge motu proprio or on motion of the accused or his/her
counsel or at the request of the public prosecutor, if the justice or judge
granted such continuance on the basis of his/her findings that the ends of
justice served by taking such action outweigh the best interest of the public
and the defendant in a speedy trial. No such period of delay resulting from a
continuance granted by the court in accordance with this subparagraph shall
be excludable under this section unless the court sets forth, in the record of
the case, either orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best interest
of the public and the accused in a speedy trial.

22. Â C. 29 of King Edward's Charter of 1297 (1225).

23. Â 159 SCRA 70 (1988).

24. Â State v. Frith, 194 So. 1 (1940).

25. Â Ibid.

26. Â Smith v. United States , 3 L.ed.2d 1041 (1959).

27. Â Barker v. Wingo, 33 L.Ed.2d 101 (1972).

28. Â McCandles v. District Court, 61 N.W. 2d. 674 (1954).

29. Â Barker v. Wingo, supra.

30. Â Ibid.

31. Â Id.

32. Â United States v. Marion , 30 L.Ed.2d 468 (1971).

33. Â United States v. Hawk , 88 L.Ed.2d 640 (1986).

34. Â State v. Frith, supra.

35. Â 250 F.2d. 19 (1957).

36. Â Barker v. Wingo, supra.

37. Â Under Rule 119, Section 4 of the Revised Rules of Criminal Procedure, the
following factors shall be considered by the trial court:

 SEC. 4.  Factors for granting continuance. — The following factors,

among others, shall be considered by a court in determining whether to
grant a continuance under Section 3(f) of this Rule.

  a)  Whether or not the failure to grant a continuance in the

proceeding would likely make a continuation of such proceeding impossible
or result in a miscarriage of justice; and

  b)  Whether or not the case taken as a whole is so novel, unusual

and complex, due to the number of accused or the nature of the prosecution,
or that it is unreasonable to expect adequate preparation within the periods
of time established therein.

 In addition, no continuance under Section 3(f) of this Rule shall be granted

because of congestion of the court's calendar or lack of diligent preparation
or failure to obtain available witnesses on the part of the prosecutor (Sec. 10,
Cir. 38-98).

38. Â Rollo , pp. 46—47.

39. Â WHEREFORE, pursuant to the above-quoted Section 27, R.A. No. 6770, in
the interest of justice, Section 7, Rule II, Administrative Order No. 07 is
hereby amended as follows:

 Section 7, Motion for Reconsideration —

  a)  Only one motion for reconsideration or reinvestigation of an

approved order or resolution shall be allowed, the same to be filed within five
 (5) days from notice thereof with the Office of the Ombudsman, or the proper
Deputy Ombudsman as the case may be, with corresponding leave of court
in cases where the information has already been filed in court;

  b)  The filing of a motion for reconsideration/reinvestigation shall

not bar the filing of the corresponding information in Court on the basis of the
finding of probable cause in the resolution subject of the motion.

40. Â 61 N.W. 2d.674 (1954).

41. Â State v. McTague, 216 N.W. 787 (1927).

42. Â McCandles v. District Court, supra.

43. Â 408 F.2d. 543 (1969).

44. Â Barker v. Wingo, supra.

45. Â 341 SCRA 67 (2000).

46. Â 355 SCRA 641 (2001).

47. Â Barker v. Wingo, supra.

48. Â Dickey v. State of Florida, 398 U.S. 30 (1970).

49. Â Rule 119, Section 9 of the Revised Rules of Criminal Procedure provides
that:

 SEC. 9.  Remedy where accused is not brought to trial within the time
limit. — If the accused is not brought to trial within the time limit required by
Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule,
the information may be dismissed on motion of the accused on the ground of
denial of his right to speedy trial. The accused shall have the burden of
proving the motion but the prosecution shall have the burden of going
forward with the evidence to establish the exclusion of time under Section 3
of this Rule. The dismissal shall be subject to the rules on double jeopardy.

  Failure of the accused to move for dismissal prior to trial shall

constitute a waiver of the right to dismiss under this section. (sec. 14, cir. 38-
98)

50. Â United State v. Lustman, 258 F.2d 475 (1958).

51. Â Barker v. Wingo, supra.

52. Â People v. Leviste , 255 SCRA 238 (1996).

* Â Copied verbatim from document obtained directly from Supreme

Court.
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