Pre-Final Reviewer Flashcards
122 QUICK NOTES
- neither a natural right or part of due process but since granted by statutory law, its suppression would violate due process (Hilario)
- “party” includes not only the gov’t & accused but also complainant who may be affected in a criminal proceeding only insofar as CIVIL ASPECT is concerned (Madali)
- RTC (OJ - notice of Appeal)
- RTC (AJ** - petittion for review)
- party cannot change his theory on appeal nor raise question of law/fact not raised in lower court [Mamaril] BUT to attain the ends of justice, it will be afforded a review of the case** [Mamaril] own words
6 - fresh period rule (NEYPES v. CA)
- appeal made w/ several accuse shall not affect the rest who did not appeal except when favorable & applicable
PC without OSG’s intervention
[PC]
- through a PFC under Rule 65 of the RoC on the grounds of
a. grave abuse of discretion amounting to lack/excess of JD
b. denial of due process rendering a judgment void is also a ground
PC with OSG’s intervention
with OSG’s conformity, PC can appeal or PFC
- to question the judgment or orders involving criminal aspect, or
- question right to prosecute
Rules, Austria & OCA circular 56-2023
note
- 56 reverse of 65
- 2023 was the year
- OSG required to file comment w/in 30 days from notice [if] appeal/PFC will affect the criminal aspect [or] right to prosecute
3.
rule 127, provisional remedies available in civil cases
[PRAID]
- support pendente lite
- preliminary injunction
- attachment
- receivership
- delivery of personal property
> r127 remedies > attachment > requisites of writ of preliminary attachment
- affidavit & bond of the applicant (R57 sec 3)
- JD over the person of the COMPLAINANT
NOT NECESSARY:
- notice to the adverse party or hearing
- JD over person of the defendant
note
there are three stages (application, issuance, implementation), implementation requires JD over person of the defendant
> preliminary attachment > how JD over DEF’T acquired?
service on the def’t of:
- summons
- copy of complaint
- application for attachment
- order of attachment
- plaintiff’s attachment bond
rule 123,4,5 procedure
what is the rule and exc?
GEN
procedure in RTC same with MTC, etc.
EXC
- provision only applies to a court
- summary procedure
give a process of how briefs are done
sec 3 - when to file
sec 4 - when to file appellee & reply brief of appellant
sec 5 extensions
[sec 3]
- w/in 30 days from receipt by appellant of notice from CoC of CA that evidence… is attached to the record
- file (7) copies of brief w/ proof of service of (2) upon the appellee
[sec 4]
- w/in 30 days from receipt of the brief of the appellant, lee files 7 to the CoC accompanied by PoS upon llant.
- w/in 20 days from receipt of brief of llant, may file reply brief
[sec 5]
GEN: not allowed
EXC:
- good Y sufficient cause
- motion for extension filed before expiration of time sought
if period to file a motion for extension of brief, what are the exceptions?
the court may grant an extension of time for the ff grounds: [mmccps]
- no motion to dismiss has been made
- no material injury has been suffered by appellee by reason of delay
- no contention that the appellee’s cause was prejudiced
4 delay was cause, IN PART, by a misunderstanding of counsel
- by appellant’s inability, because of poverty to obtain money necessary to pay expenses of appeal
- question raise is of sufficient important to require an examination of record
grounds for dismissal of appeal
- failure to file brief
- escapes from prison or confinement
- jumps bail
- flees to foreign country
what is the rule of CA insofar as judgement is concerned?
sec 10, r 124
GEN: no judgment shall be reversed or modified
EXC: unless after an examination of the record & evidence adduced by parties, CA is of the opinion that error was committed, which injuriously affected substantial rights of the appellant
what is the scope of judgment for CA
sec 11
- reverse, affirm, modify judgment
- inc. or dec. penalty
- remand to RTC for new trial/retrial
- dismiss the case
can a motion for new trial be had during pendency of an appeal?
Yes,
Section 14. Motion for new trial. — At any time AFTER the appeal from the lower court has been perfected and BEFORE the judgment of the Court of Appeals convicting the appellant becomes FINAL, the latter may move for a new trial on the ground of newly-discovered evidence material to his defense.
rule 42 v 65 certioarir
[45]
1. termed as “appeal by certiorari”
2. appellate action/procedure
3. JD of subject matter by SC
4. error of law
[65]
1. termed as “petition for certiorari”
2. original special civil action
3. concurrent JD subject matter
4. error of JD
