Coquilla vs Comelec

COQUILLA vs COMELEC

G.R. No. 151914, September 17, 2002, 385 SCRA 607

Facts:

Coquilla was born on 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided there until 1965, when he was subsequently naturalized as a U.S. citizen after joining the US Navy.

In1998, he came to the Philippines and took out a residence certificate, although he continued making several trips to the United States.

Coquilla eventually applied for repatriation under R.A. No. 8171 which was approved. On November 10, 2000, he took his oath as a citizen of the Philippines.

On November 21, 2000, he applied for registration as a voter of Butunga, Oras, Eastern Samar which was approved in 2001.

On February 27, 2001, he filed his certificate of candidacy stating that he had been a resident of Oras, Eastern Samar for 2 years.

Incumbent mayor Alvarez, who was running for re-election sought to cancel Coquilla’s certificate of candidacy on the ground that his statement as to the two year residency in Oras was a material representation as he only resided therein for 6 months after his oath as a citizen.

Before the COMELEC could render a decision, elections commenced and Coquillo was proclaimed the winner.

On July 19, 2001, COMELEC granted Alvarez’ petition and ordered the cancellation of petitioner’s certificate of candidacy. Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition.

Issues:

1. Whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner.

2. Whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy

3. Whether the petitioner’s motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition for certiorari because the motion was pro forma.

Held:

1. Yes. R.A. No. 6646 provides:

SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added)

SECTION 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong.  Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners.

2. No. Section 39(a) of the Local Government Code (R.A No. 7160) provides:

Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

The term “residence” is to be understood not in its common acceptation as referring to “dwelling” or “habitation,” but rather to “domicile” or legal residence, that is, “the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).” A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965.  From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien.

In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a “greencard,” which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

3. It is contended that petitioner’s motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition because the motion was pro forma.

The mere reiteration in a motion for reconsideration of the issues raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movant’s remedy would not be a reconsideration of the decision but a new trial or some other remedy.

In the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration,[or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, or (3) it failed to substantiate the alleged errors, or (4) it merely alleged that the decision in question was contrary to law, or (5) the adverse party was not given notice thereof.

The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioner’s motion for reconsideration was pro forma because the allegations raised therein are a mere “rehash” of his earlier pleadings or did not raise “new matters.” Hence, the filing of the motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law.

  

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Lingating vs Comelec

Facts:

During the first term of Mayor Sulong, an administrative complaint was filed against him and several other individuals for Dishonesty, Falsification of Public Documents, Malversation of Public Funds and violation RA No. 3019. On February 4 1992, the Sangguniang Panlalawigan of Zamboanga Del Sur found him guilty of the charges and ordered his removal from office.  Mayor Sulong filed a motion for reconsideration and/or notice of appeal shortly thereafter.  The Sanggunian ordered the complainant in AC No 12-91 to comment.

Pending appeal,  then Vice‐Mayor Vicente  Imbing took his oath  and assumed the  office of  Mayor of  Lapuyan on  March 3,  1992 pursuant  to Section 68  of the  Local Gov't  Code which allows  for the  execution pending appeal  of administrative  decisions. From February 1992 to August 2001, no comment was ever filed by the complainant in AC No 12-91 nor has the Sanggunian resolved Sulong’s MR/Appeal.

In the May 2001 Elections, Lingating and Sulong both ran for the position of Mayor of Lapuyan. On May  3, 2001, Lingating  file a petition for disqualification of Sulong on the ground  that the latter is disqualified  from running for any elective local  position having been removed  from office during his first term (1988-1991) as a result of an administrative case (AC No 12-91) pursuant to Section 40(b) of  the Local  Government Code. Respondent Sulong denied that the decision in AC No 12-91 had ever become final and executory since up to the filing of the disqualification case, no comment has been filed nor has the appeal been resolved. After the parties had filed their memoranda, the case was submitted for resolution. The COMELEC, however, was unable to render judgment before the elections of May 14, 2001, where Sulong was elected and proclaimed Mayor of Lapuyan.

In a resolution dated August 1, 2001, the COMELEC declared respondent Cesar B. Sulong disqualified adhering to section 40(b) of the Local Government Code.  Respondent Sulong filed an  MR arguing that the decision  in AC No. 12-91 has not become final and  executory; that at no time had he been removed  by virtue of the said decision, and  that  the issue  was moot and academic having been "overtaken   by the local elections  of May 11, 1992." 

Lingating filed an opposition to the MR contending that the fact that Sulong was succeeded by Vice Mayor Imbing was proof that AC No. 12-91 had indeed become final. Lingating also prayed that he be installed as Mayor of Lapuyuan in view of Sulong's disqualification.

The COMELEC First Division denied Lingating’s motion on the ground that the disqualification of an elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated. Lingating then filed a motion for reconsideration of this order. 

The COMELEC en banc reversed the decision of the first division, citing Aguinaldo v. COMELEC that re-election renders an administrative case moot and academic. It also ruled that respondent Sulong was not entitled to occupy the office thus vacated.    

Lingating contends that the COMELEC en banc erred in applying the ruling in Aguinaldo vs. COMELEC.  Instead, Lingating argues that the applicable case is Reyes v. COMELEC where the court held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under Section 40(b) of the LGC.  Hence, this petition.    

Issue:

Whether or not Sumulong is disqualified to run for local election

Held:

The filing of motion for reconsideration by Sulong prevented the decision of Sangguniang Panlalawigan from becoming final. There is thus no decision finding Sulong guilty to speak of. Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, to the office of mayor be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to Sec 68 [16] of the Local Government Code, which makes decisions in administrative cases immediately executory.

Aguinaldo and Reyes Cases are inapplicable. In Aguinaldo v COMELEC, the court held that removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter re-elected for another term. However, Aguinaldo is not applicable as at the time the case was decided, there was no provision similar to   40(b) of the LGC and hence, cannot be given retroactive effect. Neither is Reyes vs. COMELEC applicable as AC No. 12-91 remains to this day, not final. (G.R. No. 153475, November 13, 2002)

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Magno vs Comelec

Facts: Carlos Montes filed a petition for the disqualification of Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that the latter was previously convicted by the Sandiganbayan of four counts of direct bribery.

COMELEC granted the petition and declared Magno disqualified from running for the position of mayor since direct bribery is a crime involving moral turpitude, citing Section 12 of the Omnibus Election Code which provides as follows:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.

According to the COMELEC, inasmuch as Magno completed the service of his sentence on March 5, 1998 when was discharged from probation, his five-year disqualification will end only on March 5, 2003. COMELEC denied the motion for reconsideration. Hence, this petition.

Magno argued that direct bribery is not a crime involving moral turpitude.  Likewise, he claims that Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, is the law applicable to the case, not the Omnibus Election Code as claimed by the COMELEC.  Said provision reads:

Section 40. Disqualifications. -  The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

xxx

Magno insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000.  Thus, he was qualified to run in the 2001 elections.

Issue: Whether or not direct bribery is a crime involving moral turpitude

Held: Moral turpitude is defined as “an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.”

However, not every criminal act involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law. In this case, by applying for probation, Magno in effect admitted all the elements of the crime of direct bribery:

1. The offender is a public officer;

2. The offender accepts an offer or promise or receives a gift or present by himself or through another;

3. Such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and

4. The act which the offender agrees to perform or which he executes is connected with the performance of his official duties.

Moral turpitude can be inferred from the third element.  The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general.

Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude.

Issue: What law should apply in the case?

Held: The Local Government Code.

The Omnibus Election Code was enacted in 1985 while the Local Government Code became a law in 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it.

Furthermore, the repealing clause of Section 534 of the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of the LGC is deemed to have repealed Section 12 of the OEC.

Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. The reduction of the disqualification period from five to two years is the manifest intent.

Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioner’s disqualification ceased as of March 2000.  (G.R. No. 147904, October 4, 2002)

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Rodriguez vs. Comelec

Facts:  

In 1992, petitioner Rodriguez and respondent Marquez ran for Governor of Quezon Province. Rodriguez won. Marquez challenged Rodriguez’ victory via a Quo Warranto on the ground that there is a charge pending against him at the Los Angeles Municipal Court for fraudulent insurance claims, grand theft, etc. Thus, he is a fugitive from justice.

COMELEC dismissed the case. Upon certiorari  to the Supreme Court,  it was  held that:  Fugitive  from justice  includes not  only those  who flee after conviction  to avoid punishment,  but  also those  who after  being charged,  flee to avoid  prosecution. The case was remanded to the COMELEC to determine WON Rodriguez is a fugitive from justice.

In 1995, Rodriguez and Marquez again ran for Governor. Marquez filed a Petition for Disqualification against Rodriquez on the same ground that he is a fugitive from justice. COMELEC then consolidated both cases and found Rodriguez guilty based on the authenticated copy of the warrant of arrest at LA Court and of the felony complaint.

Rodriguez won again, and despite a Motion to suspend his proclamation, the Provincial Board of Canvassers proclaimed him.

Upon motion of Marquez, the COMELEC nullified the proclamation. Rodriguez filed a petition for certiorari.

Issue:

Is Rodriguez a fugitive from justice as defined by the Court in the MARQUEZ Decision?

Held:  

No. A fugitive from justice is defined as “not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution.” This indicates that the intent to evade is the compelling factor that makes a person leave a particular jurisdiction, and there can only be intent to evade prosecution or punishment when the fleeing person knows of an already instituted indictment, or of a promulgated judgment of conviction. Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. This cannot be applied in the case of Rodriguez. Rodriguez arrived in the Philippines on June 25, 1985, five months before the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance of the arrest warrant by that same foreign court. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak of yet at such time.

Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. (G.R. No. 120099.  July 24, 1996)

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Caasi vs Court of Appeals

Facts: 

Merito Miguel was elected as mayor of Bolinao, Pangasinan in the local elections of January 18, 1988. His disqualification, however, was sought by Mateo Caasi on the ground that under Section 68 of the Omnibus Election Code Miguel was not qualified because he is a green card holder, hence, a permanent resident of the USA and not of Bolinao. Sec. 48 provides:

Sec. 68.  Disqualifications - Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

Miguel admitted that he holds a green card, but he denied that he is a permanent resident of the United States. He argued that he obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan and that he voted in all previous elections, including the plebiscite on February 2, 1987 for the ratification of the 1987 Constitution and the congressional elections on May 18, 1987.

After hearing, the Comelec dismissed the petition. It held that the possession of a green card by the respondent Miguel does not sufficiently establish that he has abandoned his residence in the Philippines.

Issue: Whether a green card is proof that the holder thereof is a permanent resident of the United States such that it would disqualify him to run for any elective local position.

Held: Yes. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the United States. In the "Application for Immigrant Visa and Alien Registration" which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the US Department of Justice and Immigration and Registration Service to Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: “Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States.”

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. He did not go to the United States merely to visit his children or his doctor there. He entered the US with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa.

Issue: Whether Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18, 1988 local elections, waived his status as a permanent resident or immigrant of the United States

Held:   No. To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office."

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, the conclusion is that he was disqualified to run for said public office.

Issue: Whether or not Miguel is disqualified from office.

Held:   Yes. Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. Hence, his election was null and void.

Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy is one of the qualifications that a candidate for elective public office must possess. Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

● In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

● Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. (G.R. No. 88831 November 8, 1990)

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Marquez vs Comelec

Facts:  

Bienvenido Marquez and Eduardo Rodriguez were candidates for Governor of the province of Quezon in 1992. Rodriguez won, and this prompted Marquez to file a quo warranto proceedings against Marquez for being disqualified as a candidate because he is a “fugitive from justice” which is against Sec. 40 (e) of the Local Government Code.

Sec. 40.    Disqualifications. The following persons are disqualified from running for any elective local position:

         xxx         

(e)   Fugitive from justice in criminal or non-political cases here or abroad

Allegedly, at the time Rodriguez filed his certificate of candidacy, a criminal charge against him for 10 counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles, USA. A warrant was issued for his arrest, but which remained unserved because he already went to the Philippines then. 

Marquez argued that Section 40(e) of RA 7160 is rather clear. "Fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. 

Rodriguez, on the other hand, cites the Congressional Oversight Committee who drafted the IRR for the Local Government Code. In the deliberations, it could be seen that there was confusion as to the implications of defining what a fugitive from justice really is. There was a pronouncement from the Chairman that fugitive means somebody who is convicted by final judgment, and this was adapted verbatim in Art. 73 of the IRR. 

Issue: 

What is the definition of “fugitive from justice” that should be followed? 

Held: 

"Fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly finds support from jurisprudence and it may be so conceded as expressing the general and ordinary connotation of the term. 

Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment" is an inordinate and undue circumscription of the law. 

Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable weight. The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. 

There was no clear ruling on the instance of Rodriguez because Comelec never made a determination as to his status as a fugitive from justice. Case was remanded to Comelec. (G.R. No. 112889, April 18, 1995)

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Dela Torre vs Comelec

Facts: 

Petitioner Rolando P. Dela Torre was disqualified by the COMELEC from running for the position of Mayor of Cavinti, Laguna in the May 8, 1995 elections on the ground that he was convicted by the MTC of violation the Anti-Fencing Law, citing Section 40(a) of the Local Government Code of 1991 which provides as follows:

“Sec. 40.  Disqualifications.  The following persons are disqualified from running for any elective local position:

“(a)  Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;”

 

Petitioner contended that the provision is not applicable to him because he was granted probation by the MTC. 

Issues: 

1. Whether or not the crime of fencing involves moral turpitude.

2. Whether or not a grant of probation affects Section 40(a)’s applicability. 

Held: 

1. Yes. Moral turpitude is defined as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.

The elements of the crime of fencing which are:

1.  A crime of robbery or theft has been committed;

2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

4. There is, on the part of the accused, intent to gain for himself or for another.”

Moral turpitude is deducible from the third element.  Actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude.  And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s peaceful dominion for gain - thus deliberately reneging in the process “private duties” they owe their “fellowmen” or “society” in a manner “contrary to xxx accepted and customary rule of right and duty, justice, honesty or good morals.” The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on “Human Relations” and “Solutio Indebiti.

2. No. The legal effect of probation is only to suspend the execution of the sentence. Petitioner’s conviction of fencing subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. (G.R. No. 121592, July 5, 1996)

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