REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT CITY OF MAKATI BRANCH 00
THE PEOPLE OF THE PHILIPPINES, - versus -
I.S. No. 99- D-9999
COL. FERDINAND MARCELINO, Accused. x---------------------------------------------x MOTION TO DEFER ARRAIGNMENT AND SUSPEND PROCEEDINGS Accused, through undersigned counsel, to this Honorable Court, respectfully states that: 1. The arraignments of the accused in this case were set on 10 April 2016 at 8:30 in the morning. Copy of the Order setting the arraignment was received on 06 April 2016. 2. For the information and guidance of this Honorable Court, on 03 April 2016, a Petition for Review was filed for the accused in this case. The said Petition is currently pending before the Office of the Department of Justice Secretary. Thus, in accordance to Section 11(b) and (c), Rule 116 of the Rules of Court, which provides that upon motion by the proper party, the arraignment shall be suspended in the following cases: (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office .
3. In case of an adverse decision, the petitioners in said petition will appeal to the Office of The President; copy of which is hereto attached and made integral part hereof as Annex “A”. 4. A perusal of the said petition would show that the issues raised therein are prejudicial questions which must be resolved first before this Honorable Court can proceed with the instant case. 5. With all due respect, and in view of the foregoing, this Honorable Court should defer the arraignment and refrain from continuing with the proceedings of the instant case under the principle laid down in the case of This is in accordance with the case of Mario Fl. Crespo vs. Hon. Leodegario L. Mogul, G.R. No. L-53373, June 30, 1987 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that information be filed in Court. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court.
6. Verily, so as not to render moot the issues raised before the Office of the Secretary of Justice in the petition for review and for practical and ethical considerations, this Honorable Court should wait for the final determination of the said petition before taking cognizance of the case.
PRAYER WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court suspend the proceedings in this case including the arraignment of all the accused and wait for the final determination of the petition for review. Other reliefs and remedies just and equitable under the premises are likewise prayed for. Makati City, Philippines, 06 April 2016.
Atty. JESSIE R. SUAREZ , II Counsel for the Accused Roll of Attorneys No. 00000 IBP Lifetime Member No. 00000 PTR No. AC000000/01-03-2016 MCLE Compliance No. IV-000000 Issued on December 12, 2015 Kalayaan ave, Makati City Tel Nos. 000-00-00
NOTIFICATION AND COPY FURNISHED:
PROSE C, UTOR, JR. City Prosecutor City of Makati The Branch Clerk of Court RTC Branch 00 City of Makati
Greetings: Please submit the foregoing for the consideration and resolution of the Honorable Court immediately upon receipt hereof. Atty. JESSIE R. SUAREZ , II
EXPLANATION (in compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure)
Copies of the pleading/motion to which this explanation is appended was: Filed with this Honorable Court by registered mail; Sent to counsel for the adverse party/ies by registered mail; due to the following reason/s: The distance between this Honorable Court and counsel’s office which makes personal filing of the pleading/motion impracticable; The great distance from the office of counsels for the parties which makes personal service impracticable; Lack of office personnel to effect personal service; Time constraints. Atty. JESSIE R. SUAREZ , II
